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Saturday, October 08, 2005
  Score one for Free Speech and our side (the people)
ISP should not identify blogger - court | The Register: "Proud Citizen called into question the abilities of Smyrna Town Council member Patrick Cahill, referring to his alleged “character flaws”, “mental deterioration”, “failed leadership” and describing him at one point as “Gahill”.

In November 2004, Cahill and his wife sued the blogger, described as John Doe No 1 in the court papers, and three other anonymous bloggers, claiming that John Doe No 1 had accused Cahill of suffering from “mental defects and diseases” and that the misspelling of his name implied he was “engaging in extramarital, homosexual affairs.”

Without notice to the bloggers, the Cahills sought to identify their critics through a subpoena to their ISP. The ISP, Comcast, notified the four bloggers.

The bloggers immediately filed for a protective order, on the grounds that the disclosure would violate their First Amendment right to criticise a public official anonymously, but the trial court denied the motion.

It took a “good faith” approach to the question of when a person pursuing a defamation action could force the disclosure of his defamer’s identity.

Accordingly, the Cahills had to show a “legitimate, good faith basis upon which to bring the underlying claim”; that the identifying information was “directly and materially related to their claim”; and that it could not be obtained from any other source. In the trial court’s opinion, the case was proved.

John Doe No 1 appealed, and on Wednesday, the Delaware Supreme Court reversed the lower court ruling.
The Supreme Court ruling

In the opinion of the five judges of the Delaware Supreme Court, the “good faith” standard was not tough enough.

“We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their commentsor simply not commenting at all,” wrote Chief Justice Myron Steele, giving the opinion of the court.

The court was concerned that plaintiffs could easily meet the standard of the good faith test without having a particularly strong defamation case, with the result that trivial cases might be brought for purposes of intimidation or revenge.

The court therefore decided to apply a “summary judgment” standard to the case – namely, that the plaintiff must be able to show that he has a basic defamation claim against the defendant before the court will order an ISP to identify that defendant. The plaintiff does not have to show actual malice, said the court, as this would be near impossible to prove without knowing the defendant’s identity.

In addition, wrote Steele, plaintiffs harmed by an internet blog have an instant means of remedying the situation – blogging themselves. He explained:"
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