There is a feeling that when you are online, you are anonymous, you are free to say, to do, or to blog anything. Partially, that is true. Mainly because there are so many online records, that nobody really cares about what you say. Definitely, unless you blog about terrorist activities and create guide on how to make a nuclear bomb at convenience of your home. But in case somebody really cares of what you say and who you are, your anonymity might be really stripped, and you may face the organization or the person in public, whom you never expected to meet other than through virtual pathways of Blogosphere. Presenting an article from ArsTechnica on the topic.
US courts have historically looked on anonymous bloggers and commenters with a sympathetic eye, but there are exceptions. A Tennessee judge denied a blogger's motion to quash a subpoena to reveal his identity last week, and he also denied a motion to dismiss the case. With few other options available to him (or her), the blogger in Swartz v. Does looks likely to be revealed.
Even on the Internet, anonymity is never absolute... especially when you're accusing someone else of arson and tax evasion.
Critical blogging
It all started when a "prominent" couple in Old Hickory, Tennessee found themselves the target of an entire blog called Stop Swartz. Donald and Terry Keller Swartz were involved in local politics and maintained an active real estate business, in addition to operating a halfway house for those recovering from substance abuse.
The blog in question, however, painted the Swartzes in a very unflattering light—the anonymous blogger(s) heavily criticized their real estate activities and, among other things, accused the couple of committing arson, failing to report property sales in their local registry, and of being drug addicts themselves.
If this was all false, it would be considered defamation, which made up one part of the Swartz's lawsuit against the blogging Does when it was filed in February 2008. The other part of the lawsuit centered around privacy—the Stop Swartz blog had called out to readers to report back any time they spotted a Swartz anywhere inside or outside of town.
"It sends a clear message to Don and Terry that their actions are not being ignored . . . . We will tolerate their crap no longer," the blog said.
The Swartz's subpoenaed Google to reveal who was behind the Stop Swartz blog—a common tactic in cases like this. While many other anonymous bloggers don't show up in court, John Doe #1 filed a motion to quash the subpoena. In March 2009, the court denied Doe's motion but granted a temporary Protective Order to keep him or her anonymous until further review.
Doe then filed a motion to have the case dismissed. At that time, Doe tried to argue that the Swartzes had failed to prove that he was a real person who could be sued in a state court, that Section 230 of the Communications Decency Act would protect him against liability of any comments made by his readers, and that the First Amendment protected users' rights to criticize public figures.
The CDA claim might have meant something if the blog itself didn't induce readers to start spying on the Swartzes and report back—if users (and only users) had merely posted the comments on their own with no invitation, it would practically be an open and shut case.
As for whether Doe is a human being who can be sued, well... we suppose there's no obvious way to prove that, but the court decided in its judgment last week that it did have jurisdiction over Doe thanks to a past blog post indicating that he owned a home in Old Hickory.
While the court agreed with Doe that the Swartzes had failed to produce evidence of defamation in one of the claims, it denied his other claims. "[T]he court recognizes that anonymous speech is entitled to First Amendment protection. [...] However, just as other forms of speech are limited by defamation or privacy considerations, Internet anonymous speech is not entitled to absolute protection," wrote the court.
Ultimately, the court said that the Swartzes have the right to discover Doe's identity. In similar cases—such as one involving anonymous donut shop critics, a blogger critical of a local police department, and a blog commenter who targeted a Massachusetts real estate developer—the courts felt that commenters were within their free speech rights. If Doe actually gets unmasked, it could set a precedent for future cases regarding anonymous speech.
Doe has one last chance before his or her name gets splashed across Internet headlines. The judge said that his decision would be subject to interlocutory appeal, meaning that a ruling from a higher court could overturn his decision even before the case itself is over (most appeals can only be made after a trial is concluded). Doe might still get lucky with such an appeal, but at this point, he or she looks likely to show the rest of the anonymous Internet just where the limits of anonymity lie.
