EFF: Delaware Supreme Court Protects Anonymous Blogger

Electronic Frontier Foundation Media Release

For Immediate Release: Thursday, October 06, 2005

Contact:

Kurt Opsahl
   Staff Attorney
   Electronic Frontier Foundation
   kurt@eff.org
   +1 415 436 9333 x106

Delaware Supreme Court Protects Anonymous Blogger

Requires Plaintiffs to Meet Strict Standard Before
Unmasking Critic

Wilmington, Delaware - The Delaware Supreme Court has
protected the identity of a blogger in the case of Doe v.
Cahill, finding that the plaintiffs failed to meet the
strict standards required by the First Amendment to unmask
an anonymous critic.  It dismissed the case Wednesday.

This is the first state supreme court to rule on a "John
Doe" subpoena or to address bloggers' rights.

"Bloggers have a strong First Amendment right to speak
anonymously," said Kurt Opsahl, staff attorney at the
Electronic Frontier Foundation (EFF).  "It is critical that
plaintiffs' claims face a stringent test before a court
unmasks online critics, lest we reduce the vibrant public
debates on the Internet to the cautious views of a select
few voices."

The defendant in the case posted under the alias Proud
Citizen on the "Smyrna/Clayton Issues Blog"
(www.newsblog.info/0405).  In two messages from September
of 2004, Proud Citizen discussed a member of the Smyrna
Town Council, Patrick Cahill, referring to Cahill's
"character flaws," "mental deterioration," and "failed
leadership," and stated that "Gahill [sic] is...paranoid."

Cahill and his wife filed a complaint for defamation, and
sought to discover Proud Citizen's identity, which the
trial court allowed under a very relaxed standard -- merely
requiring a claim made in good faith.  The Delaware Supreme
Court disagreed, noting that substantial harm may come from
allowing a plaintiff to compel the disclosure of an
anonymous defendant's identity with a weak or trivial
claim.

Instead, the Court required a stricter standard:  the
plaintiff must (1) make reasonable efforts to notify the
defendant; and (2) provide facts sufficient to defeat a
summary judgment motion (i.e., submit enough evidence to
show the Court that the case was strong enough to proceed
to trial).  The Court held that the plaintiffs had not
shown that statements made by Proud Citizen met this test,
in large part because they were likely to be seen by the
Internet audience as statements of opinion.

EFF, along with Public Citizen, the American Civil
Liberties Union, and the American Civil Liberties Union of
Delaware, filed a "friend of the court" brief supporting
the blogger's right to speak anonymously.  You can learn
more about EFF's efforts to defend bloggers' rights at
www.eff.org/bloggers/

For this release:
http://www.eff.org/news/archives/2005_10.php#004038

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


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