Independent Newspapers v. Brodie: Maryland’s Highest Court Adopts Dendrite Standard for Unmasking Anonymous Forum Posters in Defamation Actions

Digest Commentary First Amendment

Independent Newspapers, Inc. v. Brodie, Court of Appeals of Maryland, February 27, 2009, No. 63, Opinion

On February 27th, the Court of Appeals of Maryland reversed a lower court's order compelling discovery of the identities of five anonymous Internet forum posters in a defamation action. The court had granted certiorari on its own initiative.  While the court's holding required it to consider only a pleading issue, it went on to offer guidance to lower courts in future cases involving anonymous Internet speakers in a defamation action.  In doing so, the court adopted the standard from Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).

Nixon Peabody’s Digital Media/Internet Law Blog offers analysis of the opinion, concluding that the Dendrite test is “emerging as the leading test across jurisdictions in anonymous Internet speaker cases.”  Ars Technica compares this case to other unsuccessful attempts to uncover the identities of anonymous Internet posters. The Washington Post quotes Paul Alan Levy, a lawyer for the consumer advocacy group that argued the case for Independent Newspapers, who characterizes the opinion as reaffirming the First Amendment right to speak anonymously.

Citizens for Greater Centreville links to the oral arguments and appellate brief in the case.

In 2006, Zebulon J. Brodie filed a complaint in the Circuit Court for Queen Anee's County, alleging defamation and conspiracy to defame, against Independent Newspapers, Inc. and three John Doe defendants known only by their forum usernames.  The allegedly defamatory statements were made on Independent Newspapers's Internet discussion forum.  Independent Newspapers was dismissed from the case as it was shielded from liability by section 230 of the Communications Decency Act.  However, in the same order, the judge compelled Independent Newspapers to comply with Brodie's subpoena to reveal identifying information regarding five Does who had posted on its forum.

In an opinion by Judge Battaglia, the Court of Appeals reversed because of a pleading problem: the plaintiff had not pleaded a valid defamation claim against any of the five Does subject to the subpoena.  The court held that the trial judge abused his discretion when he denied Independent Newspapers's motion for a protective order/motion to quash.

The court stated that it granted certiorari in the case not merely to sort out the record, but to offer guidance to trial courts facing the issue of whether to require the disclosure of the identity of an anonymous Internet speaker when it is sought in defamation actions.  The Court of Appeals adopted the standard set forth in Dendrite International, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).  This five-part standard requires: (1) that the plaintiff undertake efforts to provide notice to the anonymous posters that they are subject to a subpoena; (2) that the court provide posters a reasonable opportunity to oppose the subpoena; (3) that the plaintiff identify the exact statements alleged actionable; (4) a determination by the court on whether the plaintiff sets forth a prima facie defamation action against the posters; and (5) that the court balance the anonymous posters’ First Amendment rights against the strength of the plaintiff’s prima facie defamation case and the necessity of disclosing the posters’ identities.

In a concurring opinion, Judge Adkins questioned the necessity of the fifth element of the Dendrite standard, arguing that the substantive law of defamation already strikes the proper balance between the competing interests in anonymous speech and reputation.  The judge was concerned that the majority's test would "invite[] the lower courts to apply, on an ad hoc basis, a 'superlaw' of Internet defamation that [could] trump the well-established defamation law" and might become an obstacle to pursuit of legitimate causes of actions.

The Court of Appeals’s adoption of the Dendrite standard may make it harder for plaintiffs defamed by anonymous Internet speech to proceed under Maryland law.  Because section 230 of the Communications Decency Act generally shields Internet service providers from defamation arising from defamatory content posted by users, plaintiffs can usually bring defamation claims only against the speakers themselves.  These direct claims will have to survive the five elements of the Dendrite standard in order to identify the anonymous speakers.

Even after a court allows a plaintiff to subpoena identifying information regarding anonymous Internet speakers, he or she may still face an uphill battle.  A recent example involves two female Yale Law School students who were subjected to graphic insults and threats on AutoAdmit, an online discussion forum about law school admission.  Eight months after the court granted the plaintiffs' subpoena, they were able to identify only several of thirty-nine anonymous online commentators.

Related Reading: Ken S. Meyers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 Harv. J.L. & Tech. 163 (2006).