Delaware Protects The Blogosphere

This is not the kind of story that will make Mark Holland happy: Delaware's Supreme Court has ruled that attack bloggers have a right to protect their identity.

In a 34-page opinion, the justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers Inc., publisher of the Delaware State News.

In a series of obscenity-laced tirades, the bloggers ... pointed to Cahill's "obvious mental deterioration," and made several sexual references about him and his wife, including using the name "Gahill" to suggest that Cahill, who has publicly feuded with Smyrna Mayor Mark Schaeffer, is homosexual.

Sure it's rude and crude. And naturally Mr. Cahill sued to find out who these people are.

In June, the lower court judge ruled that the Cahills had established a "good faith basis" for contending that they were victims of defamation and affirmed a previous order for Comcast to disclose the bloggers' identities.

Not so fast, said one of the bloggers, calling himself "Proud Citizen." He challenged the ruling, saying that the Cahills should have made a prima facie case of defamation before trying to get their identities. (As in, you need to have already gathered enough evidence to actually win the case before going to court.)

The Supreme Court agreed, reversing and remanding the case to Superior Court with an order to dismiss the Cahills' claims.

[Chief Justice Myron] Steele described the Internet as a "unique democratizing medium unlike anything that has come before," and said anonymous speech in blogs and chat rooms in some instances can become the modern equivalent of political pamphleteering. Accordingly, a plaintiff claiming defamation should be required to provide sufficient evidence to overcome a defendant's motion for summary judgment before a court orders the disclosure of a blogger's identity.

"We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously,'' Steele wrote. ''The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."

The standard adopted by the court, the first state Supreme Court in the country to consider the issue, is based on a 2000 New Jersey court ruling.

Under the standard adopted by the Supreme Court, a plaintiff must first try to notify the anonymous poster that he is the subject of subpoena or request for a court to disclose his identity, allowing the poster time to oppose the request. The plaintiff would then have to provide prima facie evidence of defamation strong enough to overcome a summary judgment motion.

So what does this all mean? It means that, in Delaware, if a public figure wants to expose that good-for-nothing blogger who's writing all those lies about him, he'll first need to gather enough evidence to prove he can actually win a defamation suit. The blogger's right to anonymous speech trumps a public figure's right to dignity.

It's certainly something for our legislators up here to think about, what with the need to update the Privacy Act and all.