NH Supreme Court Protects Anonymous Commenter & Watchdog Website

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The New Hampshire Supreme Court ruled that Implode-O-Meter is a news organization and can protect both its sources and anonymous commenters regarding the MSI lawsuit. (Credit: CBruen.com)

The New Hampshire Supreme Court set a state standard for how to handle anonymous commenters and defined a mortgage industry watchdog site as a news organization in a ruling May 6.

Jeremy Eggleton, attorney for Implode-Explode in the case, wrote in an e-mail to iMediaEthics that the ruling set three important precedents in New Hampshire: when a newsgathering entity must reveal its sources, when a Web site must reveal its anonymous commenters, and that a Web site can be considered a journalistic entity with newsgathering privileges.

Anonymous Commenters

The Nashua Telegraph reported that the ruling reversed the lower court’s ruling to release the identity of an anonymous commenter. By doing so, the court set a precedent for the state’s lower courts regarding anonymous online commenters.

Eggleton told StinkyJournalism the court applied a test for when a Web site has to release the identity of an anonymous commenter.  That test is the Dendrite test, which Eggleton told StinkyJournalism last month he hoped would be applied.

“The test weighs the rights of the potential litigant seeking the identity of the poster against the right of that person to speak anonymously, and requires evidence—not mere allegations—that the speech in question was actually defamatory, or not protected, and actually injured the person seeking the poster’s identity before the identity can be revealed,” Eggleton wrote in an e-mail to StinkyJournalism.

Eggleton wrote that the court’s application of the Dendrite Test also factored in the “big-picture weighing of the importance of anonymous speech against the need for the identity of the speaker.”

iMediaEthics reported March 25 that the anonymous user, “Brian Battersby,” commented on a mortgage-industry watchdog site called Implode-O-Meter and accused the president of MSI of fraud.  Implode-O-Meter was ordered by a lower court to turn over the identity of Battersby.  But, Battersby’s legal representation argued Implode-O-Meter was acting in journalism, so it should protect Battersby’s identity.

But, The Union-Leader reported that May 6, Implode founder Aaron Krowne wrote: “We are pleased with the court’s ruling on the fundamental questions of free speech and find little to complain about in the analysis. We have always been confident that there was no legitimacy to MoSpec’s complaint directed towards us, especially in the absence of any actual evidence as to libel or defamation.”

According to Citizen Media Law Project, the standard adopted by the New Hampshire Supreme Court in the case “provides robust protections for anonymous and pseudonymous speech online and requires a high showing before such speakers can be identified. This ruling puts New Hampshire in agreement with a long line of cases from other states providing these important protections.”

Who Are Media?

The Supreme Court said that Implode-Explode is a legitimate newsgathering source and therefore said it could be treated the same as traditional media.

Implode-O-Meter had posted a confidential financial document on its site.  Citizen Media Law Project reported May 6 that the Implode-O-Meter got the financial document from an anonymous source and that the Mortgage Specialists had allegedly given it to the state banking authorities.

As StinkyJournalism reported April 1, the lower court judge had also ordered the company to not post confidential documents in the future.  In March, the Implode-O-Meter’s lawyer, Jeremy Eggleton, told StinkyJournalism that if the Implode-O-Meter lost on the document matter, it would be “an open door to plaintiffs across the state to attack news media.”

The mortgage company was also suing for the source of the document, which the Supreme Court ruled the Implode-O-Meter didn’t have to give up.  Eggleton told StinkyJournalism that the court set conditions for when a media entity has to reveal its sources.

Eggleton said it marks a development in New Hampshire law.  The test “requires the trial court weighing the issue to give due credit to such press-friendly factors as the importance of confidentiality to the newsgathering process when balancing the right of the press to keep its sources confidential, and a litigant’s right to know the identity of the source.”

The Daily Online Examiner reported May 6 that New Hampshire’s shield law protects journalists’ sources.  Eggleton wrote to iMediaEthics that this was the first time New Hampshire courts “recognized that an internet website can function as a journalist and derive protection from traditional newsgathering privileges.”

The Daily Online Examiner said the court wrote:

“The fact that Implode operates a website makes it no less a member of the press….Implode’s website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege.”

According to Citizen Media Law Project, the Supreme Court used prior restraint precedents to determine the case regarding the document and that “the Court rejected the argument that publishing the loan document violated laws governing confidentiality and privacy.”

Prior restraint is “an official restriction of speech before publication,” the Reporters Committee for Freedom of the Press explains.

“The Supreme Court ruled that New Hampshire’s qualified reporter’s privilege applied to the Implode-O-Meter website and could protect the identity of the source who provided the loan document. The court flatly rejected the lender’s argument that the shield law did not apply to the website “because Implode is neither an established media entity nor engaged in investigative reporting,” Citizen Media Law Project reported.

Citizen Media Law Project reported  that the Court said that “Implode is a reporter for purposes of the newsgathering privilege,” because Implode-Explode provides information to the public.

“This case stands as a vindication of important First Amendment principles and the rights of online publishers,” Citizen Media Law Project reported that its assistant director, Sam Bayard, said.  “It demonstrates that the First Amendment extends no less protection to a small website keeping tabs on the mortgage industry than it does to the New York Times publishing the Pentagon Papers. It also confirms the common sense insight that legal protection should be linked to the function of journalism, not to any particular medium.”


Citizen Media Law Blog reported that the ruling is especially relevant considering the recent cases of Gizmodo editor Joseph Chen and blogger Shellee Hale.  Both cases hinge on whether the writers posted on news sites or regular Web sites.

Chen’s house was raided by law enforcement after he reported on an iPhone prototype on Gawker’s Gizmodo.  Gizmodo paid $5,000 for the iPhone, which was found in a bar, and dissected the device for reports on its Web site, which StinkyJournalism reported May 4.

Hale commented on a forum on porn industry Web site Oprano about a security breach by New Jersey-based Too Much Media, LLC, and was sued by the company.  The New Jersey court ruled that Hale wasn’t a journalist and therefore wasn’t afforded the right to protect her sources.  StinkyJournalism reported May 1 about Shellee Hale.

According to Citizen Media Law Project, the approach taken by both the New Hampshire Supreme Court and the New Jersey court is similar to the the approach in the ruling by the California appellate court in O’Grady v. Superior Court (2006).  The cases “don’t extend coverage to anyone who posts something online, but they make clear that online publishers can qualify when they engage in a journalistic function.”

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NH Supreme Court Protects Anonymous Commenter & Watchdog Website

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