Nantz Rickard (at podium) with respondent Robert Arcamona.
Courts Need New Standards for Adjudicating Defamation on the Internet
Something vile is published about you on the Internet. It is insulting, untrue and even defamatory. You are itching to sue, but the item was posted anonymously. What can be done?
In some cases, the internet service provider can be compelled by court order to reveal the name of the anonymous trash-talker. But the legal standards for doing so are cloudy and uneven.
In the brave new world of defamation relief on the Internet, Catholic University fourth-year law student Nantz Rickard says it’s time to rethink how things are done.
“Current First Amendment jurisprudence and defamation law also do not clearly address the newly expanded Internet world of publishers,” says Rickard.
Her March 25 lecture, “Ensuring the Tail Doesn’t Wag the Dog: States’ Balancing of Defamation Pleading Standards Against Protecting a First Amendment Right to Anonymity,” relied for its arguments on the slim body of court jurisprudence that has dealt with the issue so far.
Only three state high courts of last resort, two of them just last year, have addressed what a plaintiff is required to show before a court should order an Internet service provider to irreversibly disclose an anonymous party’s identity.
In Rickard’s view, “A test should be the standard for all state and federal courts—a toolbox of weights for both the plaintiff’s and defendant’s sides of the scales that the court may apply with sensitivity to the unique circumstances of each case.”
What would such a test involve? First, an evidentiary showing by the plaintiff that is the same as would be required to survive summary judgment on the defamation claim. Second, that unlike the usual approach taken by courts in deciding motions for summary judgment, the claim should be reviewed in the light most favorable to the plaintiff, rather than the defendant. And third, that the court should be required to consider any First Amendment concerns that may be present before ordering the disclosure of an anonymous party’s identity.
Robert Arcamona, legal correspondent for PBS’s MediaShift, served as the respondent to Rickard’s arguments.
Her presentation was the second in the 2010 Student Scholar Series. Founded by Professor A.G. Harmon (left, with Rickard) and now in its second year, the series was instituted to recognize notable legal scholarship produced by members of the student body during the academic year, and also to foster the skills associated with presenting and defending that scholarship in a professional conference-style setting.