Online comments create more opportunity for discussion, but may also generate new legal concerns

Reader comment boards invite a cornucopia of opinions, from the well-informed to the ignorant. Student media publish in a campus echo chamber, where rumors can spread virally. Moderating reader comments can quickly become a bane for editors, who are forced to balance free speech with the need for sensitivity and class. It is not an easy task.

But what if commenters cross the line from tasteless and uninformed to potentially libelous? Since federal law — the Communications Decency Act — insulates the news organization itself from suit for the libelous comments of outsiders, when can the author himself be held legally responsible?

Because news sites’ comment boards typically have not required posters to provide verified identities, “Cheese Eating Surrender Monkey” — the screen name of one commenter whose postings became part of a federal lawsuit — can fire away from the relative safety of anonymity. Some courts, however, have been willing to unmask unnamed commenters, forcing news organizations to decide whether (and how hard) they will fight to protect the identities of unnamed posters.

Defining defamation

Courts have applied the same standard principles of defamation law to online speech as to speech in any other medium. Under the commonly accepted legal standard, a claimant must prove that the material was “published,” that it identified its target, that it was false, that it caused harm, and that it was done with some level of fault.

“It’s no different than defamation anywhere else,” attorney Paul Alan Levy of Public Citizen said. “It’s probably also true that the illusion of anonymity that posting online creates may be an incentive to speaking worse than you would do otherwise.”


While the nature of the Internet may make some people feel like they aren’t “publishing,” a comment can be “published” even if shared with a small circle of readers only briefly.

“The Internet has the risk of making us casual about publication,” Student Press Law Center attorney Frank LoMonte said. “Unfortunately, there is a perception that people don’t need to edit themselves on chat boards or social networking sites in the same way they would in print.”

LoMonte said lawsuits over comment-board postings often involve businesses that believe they’ve been unfairly criticized by irate consumers.

“For an ordinary person it’s going to be hard to prove meaningful damages, but if you are a business you can show a loss of customers,” he said. “It’s pretty common for people to use the web to vent about restaurants or apartments where they’ve gotten bad service, but you want to be very careful about making specific factual charges. It’s safe to say ‘this is the worst hamburger I ever ate,’ but if you say ‘this restaurant is roach-infested,’ that’s potentially libelous.”

In 2009, a former student sued Louisiana State University’s student newspaper, The Daily Reveille, over comments posted on a story about his legal dispute with the university. Commenters suggested that the former student was mentally unstable and violent.

A U.S. district court threw out the suit, ruling that the Communications Decency Act protects news outlets that do no more than offer a vehicle for unrelated third parties to post comments. Nevertheless, the Reveille later changed its policies to require editor pre-approval before comments can be seen.

End-running the CDA

So that people defamed by online comments are not left completely empty-handed, some judges have come up with standards allowing injured parties to get at the identities of the comment authors themselves.

One of the earliest and most influential cases was the Dendrite case, decided by a federal judge in New Jersey in 2001. In that case, a pharmaceutical software company alleged that a writer on Yahoo! comment boards defamed the company and revealed trade secrets, and tried to get a subpoena to obtain identifying information about the writer.

The judge refused to issue the subpoena, because Dendrite failed to show that the comments caused actual harm, an essential element of the case; in the days following the original post, stock in Dendrite’s company actually rose, and its business maintained.

The court came up with a multi-step test for future courts to use in deciding when to order a website to give over a commenter’s identity.

First, commenters must be notified and given time to oppose disclosure. The plaintiff must then show specific, actionably defamatory speech in the post. The plaintiff must show all of the required elements of a defamation case. And finally, that case must be balanced against the speaker’s First Amendment rights.

“The trial court must consider and decide those applications by striking a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants,” Judge Robert Fall wrote.

Levy said anonymity should be pierced only if the information can’t be obtained in another way. Sometimes, it can be. For instance, comments at times reveal that the author knows privileged information known only to a small group of individuals.

Public Citizen is encouraging courts to adopt a five-part standard similar to Dendrite, Levy said.

“We’ve argued that courts ought to formulate a standard which on the one hand considers the interest in vindicating reputation and on the other hand considers the interest in the right to remain anonymous when you’ve done nothing wrong,” Levy said. “The question is what sort of showing ought the courts insist on before the right to speak anonymously is taken away.”

Levy said he is concerned that if people are too easily identified, they will be susceptible to retaliation and thus be silenced. However, he said it is important for the media, as host to the marketplace of ideas, to make sure the discussion takes place within some standards.

“Anonymity is an important First Amendment value so long as the right to speak anonymously has not been abused,” Levy said.

By Caitlin Byrnes, SPLC staff writer

reports, Winter 2010-11