Tuesday, February 28, 2012

UPDATE: Ind. Appeals Court Asks Trial Judge to Review Order Unmasking Anonymous Blogger

The Indianapolis StarImage via WikipediaThe Indiana Court of Appeals last week ordered Marion County Superior Court Judge S.K. Reid to review her ruling last March to compel the Indianapolis Star to identify an online anonymous poster whose comments are part of an ongoing defamation suit (see "TUOL" post 3/4/11).

The Indianapolis Business Journal reported that to preserve the proper balance between First Amendment-protected anonymous speech and unprotected defamatory speech,  the appellate court ordered Judge Reid to apply the test articulated by a New Jersey appellate court in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity. Adapting the Dendrite standard to comply with Indiana law, the Appeals Court is requiring supporting evidence only for the elements of  of the prima facie case that are not dependent on the identity of the poster.

In her initial ruling, Judge Reid said Indiana's shield law [Ind. Code sec. 34-46 1,2] did not protect media defendants against having to divulge the identity of an anonymous blogger who is a potential defendant in a defamation suit. The Star was the lone media outlet among  the Indianapolis Business Journal and WTRV-TV Channel 6 that refused to comply with Judge Reid's ruling to identify individuals who posted comments on the media entity's Website.

The Indiana appellate court said a crucial question in the case is whether the pseudonymous commenter DownWithTheColts is the source of any information given to a news outlet under the Hoosier State's shield law. The appellate panel found DownWithTheColts' comments libelous, but noted that the plaintiff in the underlying defamation suit, Jeffrey M. Miller, former CEO of Junior Achievement of Central Indiana, had yet to prove that the offending statement was false and published with actual malice.

In the appellate decision, Indiana Court of Appeals Judge Nancy H. Vaidik wrote: “While we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters.”

The Appeals Court remanded the case to Judge Reid to determine under the jerry-rigged Dendrite test whether Miller meets the requirements to unveil DownWithTheColts.
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