Last month, my law partner, Joe White, asked whether a Virginia Court “got it wrong” when it ruled in favor of “unmasking” anonymous Yelp reviewers. The trend is continuing and so is the debate over whether a Court’s action compelling such a disclosure violates the First Amendment right of free speech.
Last month, a Philadelphia judge ordered the owners of Philly.com, who also own The Inquirer and the Philadelphia Daily News, to disclose the identity of a person who posted a comment on-line anonymously. The ruling comes out of a defamation suit filed by John J. Dougherty, the head of a Local 98 of the International Brotherhood of Electrical Workers. Dougherty sued in October 2012 over a comment made on a Daily News blog calling Dougherty a “pedophile.” Dougherty sued the anonymous poster and his lawyers subpoenaed Philadelphia Media Networks, Philly.com’s parent company, to provide the person’s identity. The Network’s objected, stating it would not disclose the identity of the poster absent a Court order. The court ordered disclosure.
A lawyer for the anonymous poster argued that the remark should be protected by the First Amendment because it was not defamatory “per se.” I’m not so sure it isn’t, but even unmasked, the Court will still have to decide if the comment is defamatory and whether any damages flow to Dougherty as a result.
The decision marks a continued trend in what many see as a developing area of law. States like Virginia, New Jersey and others have created standards, by statute or case law, through which one can compel disclosure of the identity of anonymous on-line posters. These standards all attempt to balance the right of the poster to remain anonymous under the First Amendment and the right of a victim of defamation or other illegal speech to obtain legal redress. For now, the trend seems to be toward unmasking. As the Inquirer put it: “Anonymous is not forever.”
David S. Fried is a trial lawyer who specializes in handling business, employment and personal injury litigation on behalf of individuals and small businesses.