October 10, 2005
Cahill Decision Is Good for Bloggers

The Delaware Supreme Court last week gave strong protection to online anonymity in Cahill v. Doe. The court protected "Proud Citizen's" anonymity against a City Councilman's attempt to identify the poster in a defamation suit. The decision, the first of its type from a state supreme court, required the plaintiff to meet a summary judgment standard before obtaining anonymous speakers' identities, not just provide the perfunctory complaint of notice pleading.

The court further decided, as a matter of law, that Cahill's complaint failed the summary judgment standard. Its analysis, based in part on the context of the posting, is one that may annoy some bloggers:

[C]ertain factual and contextual issues relevant to chat rooms and blogs are particularly important in analyzing the defamation claim itself... chat rooms and blogs are generally not as reliable as the Wall Street Journal Online. Blogs and chat rooms tend to be vehicles for the expression of opinions; by their nature, they are not a source of facts or data upon which a reasonable person would rely.

Based on the context of "Proud Citizen"s post, in a chatroom filled with invective and personal opinion, the court found that "a reasonable person would not interpret Doe's statements as stating facts about Cahill. The statements are, therefore, incapable of a defamatory meaning."

I anticipate some bloggers will object to this characterization: Blogs can be just as important for the dissemination of facts as newspaper sites; newspapers can be wrong. This is of course true. The Cahill decision is not denigrating blogs and chatrooms -- they are entitled to First Amendment protections as strong as those of a newspaper -- but rather recognizing the discernment ability of their readers.

The standard empowers a wide range of bloggers' speech. Because readers can use context to help them differentiate opinions from statements of fact, bloggers are freer to publish their choice of opinionated gossip or citizen journalism. And thanks to courts like Cahill and Dendrite, they can do so using pseudonyms or their real names.

Posted by Wendy at October 10, 2005 01:23 PM | TrackBack

Wendy-- I know that you have vast more experience with these sorts of cases, but from the point of view of software architect, I can say that I'm very disappointed with the court's reasoning. It was very sloppy in its definitions. It's not a concern whether if blogs are "denigrated"-- it's whether they are described correctly in case law.

see Scales of Discourse: Anonymity vs. Credibility.

Posted by: Jon Garfunkel on October 13, 2005 08:13 PM

One other thought-- perhaps the easiest
What if someone impersonates me in a blog or a blog comments? What if they straddle the fine line between satire and credularity and it does damage to my reputation? What steps do I have with that blog's publisher to respond to that in an extra-judicial fashion?

The Cahill decision adds very little useful guidance on this.

Posted by: Jon Garfunkel on October 16, 2005 09:54 PM

I, too am diasppointed in the Supreme Court's decision. They had the facts that John Doe was in fact a person KNOWN to us who has been abusing us for several years, and yet they chose to ignore it and tip toe over the correct ruling. They should hav easked us to prove damages, of which there certainly were many- rather than to dimiss it as frivolous. There IS not justice in Delaware.

Posted by: Julia Cahill on October 17, 2005 11:24 AM
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