Independent News v. Brodie

• Decision Date: 27 February 2009
• Docket Number: No. 63, September Term, 2008.,63, September Term, 2008.
• Citation: 407 Md. 415,966 A.2d 432
• Parties: INDEPENDENT NEWSPAPERS, INC. v. Zebulon J. BRODIE.
• Court: Court of Special Appeals of Maryland

966 A.2d 432

407 Md. 415

INDEPENDENT NEWSPAPERS, INC. v. Zebulon J. BRODIE.

No. 63, September Term, 2008.

Court of Appeals of Maryland.

February 27, 2009.

Paul Alan Levy (Adina Rosenbaum, Public Citizen Litigation Group, Washington, DC; Bruce W. Sanford, Mark I. Bailen, Laurie A. Babinski, Baker & Hostetler, LLP, Washington, DC), on brief, for Appellant.

Clifford M. Sloan, Amy R. Sabrin, Skadden, Arps, Slate, Meagher & Flom, LLP, Washington, DC, brief of Amici Curiae Maryland-Delaware-DC Press Association, Cable News Network, Inc., E.W. Scripps Co., Gannett Co., Inc., and Washington-Post.newsweek Interactive in Support of Appellant.

Lucy A. Dalglish, Gregg P. Leslie, Matthew B. Pollack, The Reporters Committee for Freedom of the Press, Arlington, VA, brief of Amici Curiae The Reporters Committee for Freedom of the Press, American Society of Newspaper Editors, Specialized Information Publishers Ass'n, and The American Civil Liberites Union of Maryland in support of Petitioner Independent Newspapers, Inc.

E. Sean Poltrack (Foster, Braden & Thompson, LLP, Stevensville), on brief, for Appellee.

Argued Before: BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, Judge.

In this case, we are called upon to decide whether a circuit court judge, in a defamation action, appropriately denied a motion to quash/motion for protective order regarding a subpoena requiring, Independent Newspapers, Inc., a company that commissioned an Internet forum (for which it required participants to register), to identify five Internet forum participants known only by their pseudonyms or usernames. Independent Newspapers appealed the denial of the motion, and we granted certiorari, Independent Newspapers v. Brodie, 405 Md. 505, 954 A.2d 467 (2008), prior to any proceedings in the Court of Special Appeals to address the following questions:

1. May a court breach the constitutional right to speak anonymously and order the identification of Internet speakers who are alleged to have violated the plaintiff's rights without a factual and legal showing that the plaintiff has a supportable claim on the merits?

2. Did plaintiff Brodie make the required showing in this case?

We shall conclude that the circuit court judge abused his discretion when ordering the identification of the five anonymous Internet forum participants, because the three participants sued, concededly, did not make the alleged defamatory statements, while the other two anonymous participants, who allegedly made the actionable remarks, were not sued by Brodie. For guidance to the trial courts, we, nevertheless, will discuss the standard that should be applied to balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation.

I.

In one of our first opportunities to consider legal issues arising from an Internet communications context, Beyond Systems, Inc. v. Realtime Gaming Holding Company, LLC, 388 Md. 1, 20-21, 878 A.2d 567, 579 (2005), we quoted Reno v. American Civil Liberties Union, 521 U.S. 844, 849-50, 117 S.Ct. 2329, 2334, 138 L.Ed.2d 874, 884 (1997), in which the Supreme Court defined the Internet as:

[A]n international network of interconnected computers. It is the outgrowth of what began in 1969 as a military program called "ARPANET," [an acronym for the network developed by the Advanced Research Project Agency] which was designed to enable computers operated by the military, defense contractors, and universities conducting defense-related research to communicate with one another by redundant channels even if some portions of the network were damaged in a war.

While the ARPANET no longer exists, it provided an example for the development of a number of civilian networks that, eventually linking with each other, now enable tens of millions of people to communicate with one another and to access vast amounts of information from around the world.

In Beyond Systems, we also discussed the logistics of the transmission of e-mails on the Internet and the role of an Internet Service Provider (ISP) when transmitting e-mail messages:

Because the Internet is a global network of computers, "each computer connected to the Internet must have a unique address," known as an Internet Protocol Address, which "can be used to identify the source of the connection" to the Internet.

When connected to the Internet, computers communicate with each other through the use of a "protocol stack," which is usually the "TCP/IP protocol stack." For example, when someone is sending an e-mail, the e-mail message enters through the Application Protocols Layer, which corresponds to specific programs such as browsers for using the World Wide Web and e-mail. The message then enters the Transmission Control Protocol ("TCP"), which directs certain information to a specific application or program on a computer using a port. From the TCP layer of the protocol stack, the message then moves into the Internet Protocol Layer, which directs the message to a specific computer using an IP address. The final step in the process prior to entering the Internet is for the Hardware Layer to convert the message from binary data to network signals.

The message is then transmitted via an Internet Service Provider ("ISP") which examines the IP address of the message and routes the information to the computer with the proper IP address. When the message reaches its intended recipient, the receiving computer reverses the TCP/IP protocol stack and the message is decoded.

Id. at 21-22, 878 A.2d at 579-80 (citations and footnotes omitted).

Consistent with the development of communication opportunities on the Internet, we now are presented with a confrontation between defamation law and the use of the World Wide Web,¹ regarding statements made in an e-mail or an instant message, as well as on an online "blog," "chatroom" or "discussion forum," using a username or pseudonym to retain anonymity. A username or a screen name is "[t]he name you use to identify yourself when logging into a computer system or online service. Both a username (user ID) and a password are required. In an Internet e-mail address, the username is the left part before the @ sign." PC Magazine Online Encyclopedia, PCMag.com, "username," http://www.pcmag.com/encyclopedia/ (last visited Feb. 19, 2009).²

E-mails and instant messaging form a first category of such communications where users generally know with whom they are communicating. The word e-mail stands for electronic mail and is the "transmission of text messages and optional file attachments over a network." Id., "e-mail." There are two primary ways in which users obtain e-mail service: through an e-mail client and over the World-Wide-Web:

The E-Mail Client

The use of a mail program (also known as a "mail client" or "e-mail client") such as Outlook, Eudora or Thunder-bird is the traditional approach. The advantage of such programs is that they are rich in features compared with Web-based mail and are preferred by many users. Their disadvantage is that e-mail access is tied to the machine the software is installed in. To retrieve e-mail from another computer, one has to install the mail client in that computer and set up the program all over again with user data and the address of the ISP's mail server.

Web-based E-Mail

Web-based e-mail has two major advantages. First, messages can be read and sent from any Web browser in the world by accessing the e-mail site and logging in with username and password. Even if a client e-mail program is the preferred retrieval method, Web-based e-mail provides a convenient alternate when traveling without the computer.

Secondly, a person can keep their Web-based e-mail address no matter how many times they switch ISPs for Internet access. If users do not have Web-based e-mail, they typically use their ISP's mail server. If they switch to a different ISP, they must notify everyone that me@oldISP.com has been changed to me@newISP.com, because most ISPs do not forward mail.

Id., "Internet e-mail service." "Instant Messaging" (IM) is similar to e-mails, in that it is used for the exchange of text or attachments with a specific individual or individuals, but unlike e-mails, IM offers real-time communication — where the message appears to the other user immediately after the first user presses send:

[Instant messaging is] [e]xchanging text messages in real time between two or more people logged into a particular instant messaging (IM) service. Instant messaging is more interactive than e-mail because messages are sent immediately, whereas e-mail messages can be queued up in a mail server for seconds or minutes. However, there are no elaborate page layout options in instant messaging as there are with e-mail. The IM text box is short, and pressing the enter key often sends the text. IM is designed for fast text interaction.

Instant messaging services may also provide videophoning, file sharing, PC-to-PC voice calling and PC-to-regular-phone calling. Instant messaging has promoted IP telephony because the IM software makes it easy to switch from "text chat" to "voice chat," providing the user has a headset or microphone and speakers.

Id., "Instant Messaging."

Blogs, chatrooms and discussion forums constitute a different category of Internet communications, in which users often post statements to the world at large without specification. The word blog, used as a noun, is a contraction of the words Web and Log and generally describes a site that "contains dated text entries in reverse chronological order (most recent first) about a particular topic." Id., "blog." A blog can serve as an online newsletter or as a personal journal —where an individual can post concerns, ideas, opinions, etc. — and it can contain links to web sites or can use images or video.³ Id. More recently, the noun blog has been...