The Trouble with Anonymous Bloggers

Since the days of John Stuart Mill, we have believed in the free “marketplace of ideas” ' that is, the constitutional right for all people to share their thoughts, even stridently unpopular ones, with the rest of the world. Historically, however, we have entrusted that ability to journalists and other media commentators. And, absent extraordinary circumstances, the courts have frowned on “prior restraints” of such comments.

Defining 'Publisher'

Yes, the crazies at Speakers' Corner in London, or similar venues, have likewise been able to weigh in for many years. But their often-provocative comments are typically limited to a finite audience within earshot of that Hyde Park “broadcast.” Today, however, cyberspace enables anyone willing to spring for a domain name and pay an Internet service provider $15 a month to become a “publisher.” And even better for these latter-day Horace Greeleys, they can corral a limitless number of “reporters” without paying one red cent. Small wonder that blogging has become a force of mainstream media.

Indeed, blog owners basically need only to grant anonymity to those who post to their Web sites. Thus, if as a “poster,” a Barack Obama campaigner hypothetically chooses to attack John McCain as a “philanderer,” or politically vice versa, signing his post “Popeye,” the blog readers will never know from whence it came. It is even more troubling for the victim of such a comment if he or she is a private person without the arsenal of a presidential campaign to spin away the comment by someone who hides behind a pseudonym and therefore, as the offended campaign would say, “has no credibility whatsoever.”

Who's Liable?

Anonymity poses a significant threat on the Internet, because it allows bloggers to promote harmful speech without bearing any significant risk of loss, thereby undermining the legal premise that those causing harm can be “held accountable.” As a result, a harmed person may believe that he or she is without adequate remedy at law. But is this true? Does cyberlaw really allow defamation to fall through its cracks? Broad protection for both the blocking and screening of offensive material is conferred by 47 U.S.C. 230(c). As interpreted, it basically gives blanket immunity to blog owners for most speech by third parties, whether prescreened, automatically posted or later removed. The “Zeran rule” is that the blog author/owner cannot, except in very limited circumstances, be held liable if an anonymous commentator posts the harmful information. This holds true whether the owner is an individual running a blog in his basement, or the New York Times Co. outfitting its online edition with blogs or article comments.

Under this law, the sole person liable for defamation is the actual author. Thus, the victim can sue the real perp ' the author ' although hardly the same thing as suing a major newspaper, which will likely have significant assets behind it. Courts have held this remedy sufficient, as often the true goal of a libel law is not a default victory against a pocketless offender, but to prove in open court that “it ain't so” and thereby regain one's reputation. The plaintiff can get to the anonymous blogger by filing a John Doe suit, subpoenaing the blog owner and/or the ISP to get some identifying information, amending the complaint to include the poster and eventually getting a court-ordered injunction to remove the offensive material.

Currently, the injured party has no greater path toward victory against owners that make no efforts to screen (or to identify and later remove) the outside posts for libelous content before “publishing” them on the blog. What kind of policy lets someone, maybe someone with a malignant grudge against the would-be plaintiff, fearlessly put his or her unvetted, unsourced and idle thoughts out there for all the world to potentially read? That is, to broadly shield all blog owners, authors, ISPs and other distributors from liability without even trying to find a legal means to motivate them to exercise editorial judgment online?

This blogging law is hardly the constitutional offspring of ordinary libel law that controls print media. Sure, the print edition of the National Enquirer may have a “softer” vetting process or sourcing protocol than The Christian Science Monitor, but at least there is a process. And reporters who maliciously screw up or lie about their sourcing, exposing the publisher, can be fired and effectively run out of the industry, as probably they should be.

Where's the Deterrence?

But what deterrence is there for the conduct of anonymous blog posters? Readers often chastise Web site owners when they exert control similar to that of print publishers by vetting anonymous postings and discriminating on the basis of content. True, blogs can offer “a forum for a true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual activity.” 47 U.S.C. 230(a)(3). But how exactly do agitated musings by anonymous bloggers help make the world a better place?

Simply put, the law should impose liability on those who engage in what is largely now a risk-free game online. While the beauty of the blogosphere is its emphasis on content over credentials, posters should nonetheless be compelled to get up on their soapbox and stand behind their words. It's far too easy for someone to be able to spew venom ' even falsity ' around when nobody knows who he is.

Since the days of John Stuart Mill, we have believed in the free “marketplace of ideas” ' that is, the constitutional right for all people to share their thoughts, even stridently unpopular ones, with the rest of the world. Historically, however, we have entrusted that ability to journalists and other media commentators. And, absent extraordinary circumstances, the courts have frowned on “prior restraints” of such comments.

Defining 'Publisher'

Yes, the crazies at Speakers' Corner in London, or similar venues, have likewise been able to weigh in for many years. But their often-provocative comments are typically limited to a finite audience within earshot of that Hyde Park “broadcast.” Today, however, cyberspace enables anyone willing to spring for a domain name and pay an Internet service provider $15 a month to become a “publisher.” And even better for these latter-day Horace Greeleys, they can corral a limitless number of “reporters” without paying one red cent. Small wonder that blogging has become a force of mainstream media.

Indeed, blog owners basically need only to grant anonymity to those who post to their Web sites. Thus, if as a “poster,” a Barack Obama campaigner hypothetically chooses to attack John McCain as a “philanderer,” or politically vice versa, signing his post “Popeye,” the blog readers will never know from whence it came. It is even more troubling for the victim of such a comment if he or she is a private person without the arsenal of a presidential campaign to spin away the comment by someone who hides behind a pseudonym and therefore, as the offended campaign would say, “has no credibility whatsoever.”

Who's Liable?

Anonymity poses a significant threat on the Internet, because it allows bloggers to promote harmful speech without bearing any significant risk of loss, thereby undermining the legal premise that those causing harm can be “held accountable.” As a result, a harmed person may believe that he or she is without adequate remedy at law. But is this true? Does cyberlaw really allow defamation to fall through its cracks? Broad protection for both the blocking and screening of offensive material is conferred by 47 U.S.C. 230(c). As interpreted, it basically gives blanket immunity to blog owners for most speech by third parties, whether prescreened, automatically posted or later removed. The “Zeran rule” is that the blog author/owner cannot, except in very limited circumstances, be held liable if an anonymous commentator posts the harmful information. This holds true whether the owner is an individual running a blog in his basement, or the New York Times Co. outfitting its online edition with blogs or article comments.

Under this law, the sole person liable for defamation is the actual author. Thus, the victim can sue the real perp ' the author ' although hardly the same thing as suing a major newspaper, which will likely have significant assets behind it. Courts have held this remedy sufficient, as often the true goal of a libel law is not a default victory against a pocketless offender, but to prove in open court that “it ain't so” and thereby regain one's reputation. The plaintiff can get to the anonymous blogger by filing a John Doe suit, subpoenaing the blog owner and/or the ISP to get some identifying information, amending the complaint to include the poster and eventually getting a court-ordered injunction to remove the offensive material.

Currently, the injured party has no greater path toward victory against owners that make no efforts to screen (or to identify and later remove) the outside posts for libelous content before “publishing” them on the blog. What kind of policy lets someone, maybe someone with a malignant grudge against the would-be plaintiff, fearlessly put his or her unvetted, unsourced and idle thoughts out there for all the world to potentially read? That is, to broadly shield all blog owners, authors, ISPs and other distributors from liability without even trying to find a legal means to motivate them to exercise editorial judgment online?

This blogging law is hardly the constitutional offspring of ordinary libel law that controls print media. Sure, the print edition of the National Enquirer may have a “softer” vetting process or sourcing protocol than The Christian Science Monitor, but at least there is a process. And reporters who maliciously screw up or lie about their sourcing, exposing the publisher, can be fired and effectively run out of the industry, as probably they should be.

Where's the Deterrence?

But what deterrence is there for the conduct of anonymous blog posters? Readers often chastise Web site owners when they exert control similar to that of print publishers by vetting anonymous postings and discriminating on the basis of content. True, blogs can offer “a forum for a true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual activity.” 47 U.S.C. 230(a)(3). But how exactly do agitated musings by anonymous bloggers help make the world a better place?

Simply put, the law should impose liability on those who engage in what is largely now a risk-free game online. While the beauty of the blogosphere is its emphasis on content over credentials, posters should nonetheless be compelled to get up on their soapbox and stand behind their words. It's far too easy for someone to be able to spew venom ' even falsity ' around when nobody knows who he is.