Title: Anonymity Protection versus Subpoena Compliance: What Media Companies Should Consider When Defending User Comments Online
Abstract: I. INTRODUCTION II. BACKGROUND A. A Brief History of Anonymity B. The Pros and Cons of Anonymous User Comments 1. The Argument for Anonymity 2. The Case for Disclosure 3. The Middle Ground Approach C. The Role of the Press in America 1. The Fourth Estate 2. Prior Restraint 3. The Reporter's Privilege and Protecting Sources 4. Defamation and False Information D. Today's Media Landscape E. Print Media's Unclear Future F. Recent Media Case Law III. ANALYSIS A. Media Companies' Interests in Defending Commentators B. The Law Lifts Media Companies' Liability for Posts' Content C. Inconsistency with John Doe Subpoenas and the ISP Solution D. Media Companies' Options for Protecting User Commentators 1. Protect None 2. Protect All 3. Invoke the Reporter's Privilege or Shield Laws 4. Use Standards Employed by Courts to Determine the Merits of John Doe Subpoenas Served on ISPs IV. RECOMMENDATION A. Determine Whether the Subpoena Shows Prima Facie Evidence of Unprotected Speech B. Decide Whether the Plaintiff's Claim Has Enough Strength to Survive a Motion to Dismiss or Motion for Summary Judgment C. Consider Whether the Subpoena Proves Relevant to the Plaintiff's Case D. Consider Whether the Plaintiff Made the Claim in Good Faith E. Examine Whether the Plaintiff's and Defendant's Interests Are Balance F. Examine Whether the Plaintiff has Exhausted All Other Means to Identify the Defendant V. CONCLUSION I. INTRODUCTION If you are one of the 40% of Americans for whom the Internet is a primary source of news, (1) or one of the millions more who occasionally seek news on the web, you have likely come across a user comments section at the bottom of a story's web page. This feature allows readers to provide anonymous feedback about the news they just read. user comments sections have the capacity to engage readers by allowing them to disseminate interesting ideas and participate in thoughtful discussions. one proponent of anonymity online says that the ability to post anonymously online gives of us more power than any of the framers of the Constitution had to change the world. (2) But in some cases, what could be a forum for intelligent discourse deteriorates into a breeding ground for libelous, criminally implicative comments (3) under the veil of a pseudonym. (4) The prevalence of anonymity online has increased the number of associated problems, such as defamation, libel, threats, offensive language, and criminally implicative information. (5) As a result, media companies are beginning to receive John Doe subpoenas, (6) or legal orders commanding the person or organization named in the subpoena to provide information or testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding. (7) Media companies receiving John Doe subpoenas must decide whether to protect the identities of their online readership, which they need to ensure the future success of their increasingly web-based publications. (8) No firm guidelines exist for media companies to follow when making such a decision, (9) and courts are divided on how to approach John Doe subpoenas. (10) Part II of this Note will discuss anonymity and the First Amendment as it applies to user comments. Part III will argue that while media companies hold many altruistic and financial reasons to defend user commentators, the companies should carefully consider each subpoena on a case-by-case basis, using set standards to determine if they will protect the reader or forfeit their information. Part IV of this Note concludes that a model similar to what courts employ when deciding whether to enforce John Doe subpoenas served on Internet service providers (ISPs) provides the soundest, most objective way for media companies to approach John Doe subpoenas. …
Publication Year: 2011
Publication Date: 2011-03-22
Language: en
Type: article
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