Comcast Unmasks Anonymous Commenter In Defamation Case

Do online commenters have a right to remain anonymous? If their comments are possibly defamatory, should the subject of those statements have to prove the defamation before learning the identity of the writer? This are questions surrounding the story of an Illinois Comcast subscriber who, after a nearly four-year legal battle, has been identified as the writer of inflammatory comments directed at a local politician.

This matter goes back to Dec. 2011, when someone wrote a comment on a Freeport Journal Standard article comparing the politician to former Penn State assistant coach, and convicted child molester Jerry Sandusky. A second comment under the same user name claimed that the politician had previously attempted suicide.

The politician, claiming that these statements were false and defamatory, sued the anonymous commenter in early 2012. The Journal Standard’s parent company provided the plaintiff with the commenter’s IP address and identified him as a Comcast subscriber.

Comcast said it could name the person associated with that IP, but told the plaintiff that it would need a court order directing the company to reveal the identity.

This is always the difficult and complicated part of anonymous commenter/review cases, as some courts and companies are hesitant to breach that anonymity when the defamation has yet to be proven. Some even believe that outing an anonymous online commenter before a trial has a chilling effect on free speech and could prevent people from using the shield of anonymity to reveal important information that would have otherwise been kept under wraps.

In this case, the plaintiff was able to take advantage of Illinois court rules that can allow the identification of the commenter if the plaintiff can prove that his defamation claim is likely to survive a motion to dismiss.

The plaintiff argued that the Sandusky comparison was obviously defamatory as it implied that he’d committed the same crime as the disgraced football coach, and both a local county court and a state-level appeals court agreed, noting that this comment was not reasonably capable of an innocent construction, and that it could reasonably be interpreted as stating an actual fact (as opposed to merely an opinion of the commenter).

The anonymous user took his case to the Illinois Supreme Court, and in June the state’s highest court affirmed [PDF] the rulings of the previous courts.

The court noted that the Sandusky statement was irrelevant to the topic of the article, and that the claim of innocent construction of the comment “would be strained and unreasonable.”

In breaking down whether the comparison was a statement of fact or opinion, the court looked that three factors: whether the statement has a precise and readily understood meaning; whether the statement is verifiable; and whether the statement’s literary or social context signals that it has factual content.

“[The defendant] intended to convey the idea that [the plaintiff] was a pedophile or had engaged in sexual acts with children. Thus, the first factor is met,” writes the court, which also points out that claims of child molestation are verifiable through victim testimony.

And though the court acknowledges that “the Internet is susceptible to hyperbole, exaggerations, and rhetoric, it is also a place where factual content is conveyed. There is nothing in the content or forum of the Freeport Journal Standard’s website to suggest that [the defendant’s] allegation could not reasonably be interpreted as stating an actual fact.”

In early August, the U.S. Supreme Court decided to not hear the case, leaving Comcast with little option but to turn over the man’s information to the plaintiff.

According to the AP, the man was identified earlier this week. The plaintiff in the case says that he is familiar with the commenter, a local attorney.

“I know him, and I’m very disappointed,” the plaintiff tells the AP. “This has been a nightmare for me.”

The defendant’s attorney says the plaintiff must now prove that the owner of the IP address actually wrote the comments in question.

“He’s the gentleman that pays for the Internet access and the IP address,” explained the lawyer. “But many, many people can use an IP address. He has a family and he has a wireless router.”

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