This recent article in the Boston Globe discusses gripe site litigation and the protection afforded to anonymous speakers on the internet. The article suggests, and my experience concurs, that many defamation suits are filed by businesses trying to stamp out consumer complaints. While the article is balanced, it does have some pointed quotes taking shots at those who file defamation suits to stifle criticism. I particularly enjoyed this quote by Eric Goldman:
“Contractors and home builders are going to have to grow thicker skins,” he said. “They cannot squash all the people who will complain about what they do.”
The article discusses a pair of cases against a website, Paulmcmann.com, which criticizes Weston, Mass. developer, Paul McMann. See McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006); McMann v. Doe, __ F.Supp.2d __ (D.Ariz. 2006). McMann claims that the website is riddled with defamatory errors, and sought to unmask the anonymous author of the site.
When it comes to unmasking anonymous internet speakers, a Delaware Supreme Court Case sets the standard. See Doe v. Cahill, 884 A.2d 451, (Del. 2005). In that case, the Delaware Supreme Court held that an anonymous blogger could not be unmasked unless the plaintiff comes forward with sufficient evidence to support a motion for summary judgment. In other words, plaintiffs do not get to simply go on “fishing expeditions,” unmask the author, and then figure out if they have a case. (Hat tip to the Electronic Frontier Foundation for its hard work on that case).
This standard has been upheld in federal courts in both Arizona and Massachusetts. Doe v. Cahill seems to be favored every time it is raised. As noted in the Massachusetts case:
“Speech on the Internet receives First Amendment protection. First Amendment protection includes protection of anonymous speech . . . At the same time, there is no right to freely defame others.” McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006)
Although the Dist. of Mass. acknowledged that there is no right to defame others, the Court said that McMann’s complaint appeared to be almost wholly without merit. Neither publishing a description of McMann’s business practices nor using a publically available picture of McMann were actionable offenses. The statements on the site were all personal opinion, which is not actionable. With respect to the photograph, since it was not used for a commercial purpose, there was no misappropriation of McMann’s likeness. Finally, the common law copyright claim was rejected as it was preempted by federal law.
Public Citizen lawyer, Gregory Beck, made a great point in the Globe article.
“Nobody’s stopping him from posting his side of the story,” Beck said. “Consumers reading these gripe sites understand there are two sides to every story. They’re capable of understanding this is one opinion.”
Unfortunately, McMann, instead of adding more speech to the marketplace of ideas, has comported himself like any other number of internet crybabies who think that if someone says something bad about you, the law should step in and stop them. Welcome to America, Mr. McMann.
Hat tip to Mom for bringing this one to my attention. Well that and that whole “giving birth to me” thing.