As with many evolving technologies, blogging is something of a gray area when it comes to the law. While many aspects of blogging is subject to the same laws of defamation as other mediums, it is an evolving process that needs precedents in order to make it clear.
Recently, the anonymity of bloggers has been called into question. It was once thought that those who blogged anonymously had protection against prosecution. Subsequent court rulings indicated otherwise.
Up until relatively recently, blogging anonymously was relatively safe. Thanks to the 1995 McIntyre v. Ohio Elections Commission, the Supreme Court had ruled that the right to anonymous free speech was squarely protected by the First Amendment.
The ruling stated that anonymity was a viable tool in allowing a minority voice to be heard.
“Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views…Anonymity is a shield from the tyranny of the majority…It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society..”
However, the law never stands still. Model, Liskula Cohen from New York successfully applied for a court ruling to compel Google to provide the details of a blogger who defamed her. The New York Supreme Court upheld her case and forced Google to hand over the details.
The court said that the misuse of the internet cannot be ignored and the protection of anonymity has to be balanced with the rights of people who suffer damages. Those who suffer damages as a result of actionable communications on the internet should have a redress in law.
A similar case in California resulted in a slightly different approach by the California Superior Court. The Chang Case as it became known involved an agreement between a former police officer and the University of California. Chang blogged about the case, which received some anonymous feedback, which Chang believed to be from the University.
Rather than forcing Google (who owned the blog) to provide the details of the posters, the judge ordered a third-party investigator to view the details and only provide them if they were indeed from the University. This is a useful compromise that seeks to protect both the defamed and the blogger.
This ruling was received positively by the internet community at large. It pointed towards a court that viewed the bigger picture and worked to balance the First Amendment and the right to redress.
Going forward, bloggers need to be careful about what and whom they blog about. The laws of defamation have not changed, even if the mediums through which they can be practiced have. The law is clear, in that the freedom of speech prevails, but people have a right to redress if they are defamed.
Bloggers, anonymous or otherwise need to be careful what they say and who they say it to if they want to avoid being taken to court. The law is clear, opinion is free, defamation is not.
