Why do news organizations allow anonymous comments? Legal cases, lawsuits over practice

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For now, anonymous comments are common on most blogs and news sites.

It’s not the 1990s anymore.  Back then, if you wanted to submit a letter to the editor, you had to provide all sorts of information about yourself – name, address, phone number.  Editors could check you out and see if “you” really are “you.”

But now with the Internet, you can be “you1, “Sally3,” “Bob” and “anonymous” all on the same site, probably, and all at the same time.  And with that freedom to be whoever you want to pretend to be on the Internet, some users seem to think any posting they make under a different name can never be traced back to them.  Courts and news organizations are now in the process of deciding whether that is permissible or not.

Either way, as New Hampshire attorney Jeremy Eggleton told iMediaEthics, “No one says you have a right to post anonymously.  If you post something bad, you still have to face the consequences.”

It may be an issue the Supreme Court takes up, Eggleton said.  “If different standards are developing in different states or different federal jurisdictions … you’re going to have a lot of inconsistency in the law, so it may be that at some point the federal Supreme Court may have to take a case in order to establish a universal standard for the entire country.”

Christian Davenport blogged on The Washington Post Web site that the newspaper’s site hasn’t really decided what to do about reader-posted comments.

Davenport quoted The Washington Post columnist Gene Weingarten, “The vile stuff is … vile. It should not see the light of day. When a newspaper allows it up there, it is passively condoning it.”

And, how many news organizations really have the time or resources to sift through every comment on every story posted online?

A recent letter to the editor (people still write them!) by Bruce Langlan ran in the Massachussetts newspaper Bridgewater Independent and seemingly called for the end of anonymous comments:

“The newspapers do a disservice to all by publishing online comments from unnamed individuals and need to revisit their current policy. What is the difference between a Letter to the Editor in which the writer has to identify oneself, provide an address and telephone number to get published and one who comments anonymously? Why allow anonymous comments from those who don’t have the courage to say what they have to say under their own name? They muddy the waters and we have enough mudslinging as is.”

Why do news organizations allow users to comment anonymously?  If users can’t put their real name (first and last names) behind a comment, why should readers put their trust in whatever the user has to write?  If the user needs to cover up personal ties to the subject he or she is commenting on, that user probably shouldn’t be commenting, right?

iMediaEthics wrote about a back-and-forth Twitter discussion of anonymous comments last week.  A senior writer at the technology blog GigaOm.com backed anonymous comments in the name of opening discussion to as many people as possible.  On the other side, The Batavian editor Howard Owens argued anonymous comments are unethical because commenters should know who is behind each statement.

The (Cleveland) Plain Dealer recently revealed the identity of an anonymous poster.  Even though it turned out to be a good thing for disclosure, whether the newspap-er had the right to go into the Web server to find the user’s identity is being questioned.

The commenter, “lawmiss,” had written a comment about the mental state of a reporter’s relative.  It turned out that commenter’s e-mail address was the same as county judge Shirley Saffold, and that the user had also commented on articles about that judge’s cases.  After questioning, Saffold’s daughter came forward and said that she wrote at least five of the eighty comments, The Plain Dealer reported.

As Henry Gomez of The Plain Dealer blogged March 26, the newspaper now “finds itself in an ethical quandary, stirring a debate that balances the public’s need to know against the privacy concerns of online participants.  On one side are experts who believe the newspaper has violated a trust by exploring and revealing information about a critic. On the other are those, including Plain Dealer Editor Susan Goldberg, who believe that information is too important not to see the light of day.”

As Gomez wrote, “how the newspaper obtained the information troubles Bob Steele, a journalism ethicist with the Poynter Institute and DePauw University. Steele questioned whether editors were justified in exploring lawmiss’ identity as there was ‘no immediate, profound danger to someone’ and ‘no clear suspicion of judicial misconduct’ at the time the investigation began.

‘It does raise the question of the wisdom and fairness of the newspaper using the registration system of the Web site for reporting purposes,'” Gomez reported Steele said in a telephone interview.

Either way, once the identity of “lawmiss” was out there, there was no turning back for The Plain Dealer.

The Plain Dealer’s Kevin OBrien reported David Goodman, managing partner of the Cleveland office of law firm Squire Sanders & Dempsey, wrote in an e-mail to The Plain Dealer,

“Whenever I see the comments on articles on cleveland.com and other online versions of newspapers, I am taken aback (or worse) by how often they are vicious and vitriolic. The comments are filled with gratuitous and usually flat-out wrong ad hominem attacks. It seems like a flood of bile.”

OBrien wrote that “The culture of the Internet is different from the culture of the printed paper — and there are many positive aspects to that. I believe insisting on real names would bring online conversation to a halt.  Right now, most papers do what we do: review comments after they’re posted, sometimes as part of informal monitoring, sometimes in response to complaints. This makes for a system that’s inconsistent at best, because different people have different ideas about what’s offensive, and they don’t always have time to do the job as thoroughly as they’d like. Besides, journalists live by the First Amendment and, by nature, aren’t censors. A comment has to be pretty outrageous to get them to act.”

As Eugene Kane blogged on Milwaukee, Wisconsin’s The Journal Sentinal Online , “The blogosphere’s popularity over the last decade or so seems to have avoided the requirement for credibility for commenters. As a result, people feel free to comment on whatever they want, however they want, and in many cases, as offensively as they want.  Some of them talk big smack, mainly because nobody knows their name.”

Connie Schultz, a columnist for The Plain Dealer, recently wrote that she looks forward to anonymous comments being banned on news sites. “Maybe that’s the foolish optimist in me, but I want to believe that we will finally admit — to ourselves and to the public at large — that allowing people to hide behind anonymity has not been good for our industry, our culture or our country” Schotlz wrote in her column.

Schultz did write that the decision to reveal the user’s identity did “throw us into choppy waters of our own making,” but that she supports the decision.

The judge whose e-mail address and daughter are tied to the comments, The Plain Dealer reported, has “criticized the newspaper for singling out the lawmiss comments for inspection. In the interview in her chambers, she cited the decision to trace the comment as further evidence that the newspaper is on a campaign to remove her from the bench.” Unfortunately, it appears the few commenters who write negative or defamatory items are the ones that create a call for action.

“Reading multiple posts, often by the same person using a variety of identities, amplifies voices and exaggerates numbers,” Schultz wrote in her column. “The haters are small in number, but they are tenacious, and the resulting echo chamber fuels a growing climate of fear and rage born of false impressions.”

The point of allowing users to comment anonymously is to “engage the community in an unfettered discussion on what’s important to them,” Steve Lambert, editor and publisher of the San Gabriel Valley Newspaper Group, wrote on The Pasadena Star News.  “The vast majority of our readers understand and respect that, and yet, from time to time, comments cross the line, forcing us to re-evaluate the practice altogether.”

Lambert also wrote: “We live in a world where rhetoric rules, where LOUD AND EXTREME is mistaken for thoughtful and important…The Internet has certainly contributed, giving anonymous voices the freedom to insult, defame and incite — all in the name of ‘venting.’”

In New Hampshire, a mortgage industry watchdog Web site, Implode-O-Meter posted a confidential financial document.  On it, a user named Brian Battersby commented calling the CEO of mortgage company, MSI, a fraud.  In response, the mortgage company requested Implode-O-Meter both take down the document and reveal the user’s name.  Implode-O-Meter pulled the document, but wouldn’t give up the user’s name.  The company sued.

“A Rockingham County Superior Court judge ordered the publisher to reveal Battersby’s identity to the company and not to post confidential documents in the future.” The Nashua Telegraph reported.

The case went to the New Hampshire Supreme Court last November and is awaiting a verdict.

Jeremy Eggleton, the attorney representing Implode-O-Meter, said two media issues are at stake in the case.

First, the Implode-O-Meter is argued to be a journalistic entity.  Because it is, it should be allowed to publish the confidential financial document and not reveal its source.  Second, if the user’s name is to be revealed, Eggleton requested the not just the Dendrite Test be applied but that a standard is created for the future.

If news organizations continue to permit anonymous commenting, Eggleton’s suggestion of the Dendrite Test could be a solution.

Under the Dendrite Test, “when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should,

“(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;
(2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
(4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and
(5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.”

“There is information, it analyzes the information, and it published information that is has analyzed,” Eggleton said. “Whether the Implode-O-Meter was a journalistic entity or not has more to do with its ability to protect its sources and the source of the document it obtained.”

If Implode-O-Meter loses on the document matter, it affects any news medium with sources, Eggleton said.  “It’s an open door to plaintiffs all over the state to attack news media” in order to uncover sources.

Either way, the anonymous poster could be revealed.  Eggleton said it doesn’t matter if the Web site is strictly a news site or just a Web site.

In the context of articles, the Web site – news or not – bears the responsibility for anything is chooses to publish.

“Under the common law, if you’re a newspaper or a book publisher or a magazine publisher and you receive a quote from somebody out there and want to republish that quote whether in a newspaper or editorial … you bear liability if that quote is defamatory.  If I quote you saying my neighbor Joe Smith is a child molestor, not only are you liable for defamation, but I am as the publisher liable for defamation.  As a newspaper or magazine publisher, you can essentially define what is meritorious.  With that decision making capacity should come liability.”

But, if the defamatory comment is posted by someone other than the Web site, the Web site doesn’t bear responsibility.  Eggleton cited Section 230 of the Communications Decency Act.  Liability for comments lands on the person who commented – even if they’re “anonymous.”

That section Eggleton referenced says that  “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. No provider or user of an interactive computer service shall be held liable on account of—

“(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph”

As the Electronic Frontier Foundation wrote:  “readers’ comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However, if you selected the third-party information yourself, no court has ruled whether this information would be considered ‘provided’ to you.”

list of cases the EFF archived involving Section 230 is available on the EF.

MSI, the mortgage company, wants the name of the user behind “Brian Battersby.”  But, Eggleton said the reasoning behind MSI’s request could be a cause for concern and protection.  “You have a right of redress against someone who defames you, but the fundamental problem is our courts are very liberal in terms of who we let in the door to open up a claim,” Eggleton said.

Sure, it’s easy to see a comment accusing fraud as defamatory, but will MSI actually follow through with a suit on the person? Would it even win? Was the president’s reputation actually harmed by that comment?

“Corporations end up using that open door policy to unmask people who say things they don’t like even if they wouldn’t legitimately expect to win a defamation claim, and that’s what we believe is happening in this case.  No way in a million years the plaintiffs would ever prevail in a defamation claim against this guy,” Eggleton said.

Is a solution no comments at all?

John Temple, the editor of eBay founder Pierre Omidyar’s new Peer News Web site, is apparently not even messing around with comments.

”Peer will not have comments,” TechCrunch reported. “(Comments) descend into racism, hate, ugliness and reflect badly on news organizations that have them,” said Temple. “Why? Because people do not have to show their faces when they comment so there’s no sense of responsibility … We think anonymity is a huge problem when it comes to comments,”” TechCrunch reported Temple said.

While blocking comment features entirely might be a big step for news organizations to take, is blocking anonymous comments too big?  If users are required to honestly identify themselves, will online comment discussions be more civil?


StinkyJournalism has contacted Connie Schultz of The Plain Dealer and will post any response.

UPDATE: 04/08/10 11:27 AM EST Judge Shirley Strickland Saffold is suing the Cleveland Plain Dealer for $50 million for revealing her e-mail address as being behind the “lawmiss” commenter on its Web site.

UPDATE: 05/23/10 6:00 PM EST Corrected the spelling of Judge Shirley Strickland Saffold’s name in the body of the article.

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Why do news organizations allow anonymous comments? Some news outlets sued over IDs

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