Requires Plaintiffs to Meet Strict Standard Before Unmasking Critic

Wilmington, Delaware - The Delaware Supreme Court has protected the identity of a blogger in the case of Doe v. Cahill, finding that the plaintiffs failed to meet the strict standards required by the First Amendment to unmask an anonymous critic. It dismissed the case Wednesday.

This is the first state supreme court to rule on a "John Doe" subpoena or to address bloggers' rights.

"Bloggers have a strong First Amendment right to speak anonymously," said Kurt Opsahl, staff attorney at the Electronic Frontier Foundation (EFF). "It is critical that plaintiffs' claims face a stringent test before a court unmasks online critics, lest we reduce the vibrant public debates on the Internet to the cautious views of a select few voices."

The defendant in the case posted under the alias Proud Citizen on the "Smyrna/Clayton Issues Blog" (www.newsblog.info/0405). In two messages from September of 2004, Proud Citizen discussed a member of the Smyrna Town Council, Patrick Cahill, referring to Cahill's "character flaws," "mental deterioration," and "failed leadership," and stated that "Gahill [sic] is...paranoid."

Cahill and his wife filed a complaint for defamation, and sought to discover Proud Citizen's identity, which the trial court allowed under a very relaxed standard -- merely requiring a claim made in good faith. The Delaware Supreme Court disagreed, noting that substantial harm may come from allowing a plaintiff to compel the disclosure of an anonymous defendant's identity with a weak or trivial claim.

Instead, the Court required a stricter standard: the plaintiff must (1) make reasonable efforts to notify the defendant and (2) provide facts sufficient to defeat a summary judgment motion (i.e., submit enough evidence to show the Court that the case was strong enough to proceed to trial). The Court held that the plaintiffs had not shown that statements made by Proud Citizen met this test, in large part because they were likely to be seen by the Internet audience as statements of opinion.

EFF, along with Public Citizen, the American Civil Liberties Union, and the American Civil Liberties Union of Delaware, filed a "friend of the court" brief supporting the blogger's right to speak anonymously. You can learn more about EFF's efforts to defend bloggers' rights at www.eff.org/bloggers/.

Contact:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org