When Kymberly Clem was kicked out of a local shopping mall for wearing a dress that a security guard said was too short, it was enough to upset her. But when an anonymous comment accusing her of a crime appeared on an article about the incident in the Richmond Register, Clem took legal action.
The Eastern Kentucky University student filed suit against the anonymous poster,?known only as “l2bme,” and subpoenaed the Register to reveal the identity of the person who posted the online comment. But the Register is contesting the request, contending the poster has a right to comment anonymously under the First Amendment, said Kenyon Meyer, an attorney for the Register.
For both the student and professional media, user comments on Web sites are the basis of a growing number of lawsuits. Editors are attempting to grapple with how they should respond —?ethically and legally —?to controversial comments left on their sites by anonymous posters.
Jonathan Handel, a digital media law attorney with TroyGould Attorneys in Los Angeles, Calif., said online comments pose tricky legal questions because libel and privacy claims are matters of state law and can vary with the location. He noted comments are a different kind of material than a news story.
“The difficulty of these situations with newspapers is that historically the stuff that goes into a newspaper has been edited and vetted by the newspaper, so there’s kind of a built-in expectation that that’s the case when it comes to comments as well,” Handel said. “But comments are not sourced and double sourced, and they’re not typically content that’s been subjected to rigorous journalism standards.”
Posting from a personal computer or behind the veil of a pseudonym does not necessarily protect online commenters from legal action, said Sandra Baron, the executive director of the Media Law Resource Center in New York City.
“It is not a law-free zone,” she said of newspaper sites. “The laws of this nation apply whether you’re posting online or posting a letter, whether you’re writing a book or publishing a newspaper. When you go online and post information, you’re subject to the laws of libel, privacy, trademark and the rest.”
In March, a student at The Ohio State University in Columbus, Ohio, was arrested for posting threatening messages on the student newspaper’s site.
The student, Rahat Islam, commented on a story by the Lantern about Melissa Stredney, a teaching assistant who had recently been fired after being accused of persuading her students to cheat and threatening them with e-mails after she was questioned by officials.
Posing as Stredney and posting with her name, Islam left two comments on the story, according to the Lantern.
Both posts referenced the campus shootings at Virginia Tech in Blacksburg, Va., which left 33 people dead in April 2007. In the second comment, Islam wrote, “You guys better watch your back, cause come finals week its going to be Virginia tech all over again, I swear it!”
When the Lantern staff was alerted to the comments, the paper’s adviser, Tom O’Hara, called campus police. From there, the officers contacted the university’s IT department to track the student back to his dorm room, O’Hara said.
The Lantern does not have a policy regulating online comments or monitor them on a regular basis —?mostly because online posts have not been a “chronic problem,” O’Hara said. Editors determine on a case-by-case basis whether a comment violates the newspaper’s legal or ethical standards.
O’Hara stands by his decision to alert campus police, though the ability for users to post anonymously or under another person’s name still bothers him.
“I like comments with people’s identities behind them,” he said. “But the digital world is different. I see the benefits, but frankly it still bothers me that people can comment on these things anonymously.”
Baron said her organization has seen a growing number of issues with newspapers’ online operations, especially with anonymous comments left on stories by readers.
But whether newspapers can be held liable for what users post on its site is unclear, said Christine Corcos, an associate law professor at Louisiana State University in Baton Rouge, La. She noted it largely depends on the publication’s level of involvement with online comments.
In most cases, the newspaper would likely be immune to legal action under Section 230 of the Communications Decency Act, she said. The act states “interactive computer service providers” should not be considered the publishers of content posted by other users. Section 230 prevents providers — newspaper sites, blogs, listservs, and other online forums — from being held liable for content they did not create. Under the section, providers can still take editorial control over comments by editing, deleting or prescreening them without changing the meaning of the content.
In April, East Baton Rouge District Court Judge Todd Hernandez agreed newspapers are not liable for users’ comments, dismissing a lawsuit filed against the LSU student newspaper.
Patrick Esfeller, an LSU student, had sued the Daily Reveille and its senior editors, claiming they should be held accountable for comments posted on stories about the student’s litigation against the university.
Esfeller told the SPLC in April that he was considering individually suing the person or people who posted the five anonymous comments.
Recent attempts to discover who was posting on professional newspapers’ sites have resulted in differing views over whether papers can legally be asked to reveal the identity of posters.
In September 2008, a district court ruled posters on the Web site of the Billings Gazette, a Montana newspaper, should remain anonymous after a candidate in a local election asked the paper to identify two commenters.
The Maryland Court of Appeals — the highest court in the state —?ruled in February that a local newspaper was not required to disclose the identities of three people who posted anonymous comments on a story. A local Dunkin’ Donuts owner had sued the paper to determine who posted the comments, which said his store was “one of the most dirty and unsanitary-looking food-service places I have seen.”
But in May, an Illinois judge ruled a newspaper must reveal who posted two comments that could aid police in a murder investigation. The judge allowed three comments, which appeared to be only discussing the story, to remain anonymous.
And in June, the editor of the Las Vegas Review Journal refused to comply with a subpoena that would identify the users who posted roughly 100 comments about a federal tax fraud case, claiming the subpoena was overbroad. The paper later agreed to release only the identity of two posters, whose comments were possibly threatening jurors or prosecutors.
Based on past court decisions, citizens have a constitutional right to speak anonymously, Handel said. But whether that right still applies in an online forum is disputed.
“There is a First Amendment issue here that overarches this,” he said.
“In general, the First Amendment preserves the right to speak anonymously and so it could be that people leaving comments actually have more protection than journalistic sources and not from shield laws but from the First Amendment.”
But when posters began to use their anonymity as protection for posting offensive comments, editors at the Daily Egyptian, the student newspaper at Southern Illinois University in Carbondale, Ill., stopped allowing the online comments.
In a letter to readers, then-Editor Allison Petty said the privilege to post comments on stories had been rescinded because users were not mature enough.
“It is not easy to offend college students who spend most of their time in a newsroom,” she wrote. “But some of you have persevered, pursuing standards of bad taste to depths so subterranean we could not help but take note.”
Petty noted users had bashed the paper for the way it covered the death of a co-worker’s family members. An anonymous poster also called a black, female student leader an “ape” in a comment posted to a story.
“It is sometimes so baffling to imagine that comments born of such blatant ignorance and hate come from real people,” Petty wrote. “Debate is one thing; libel is another.”
Denying anonymous comments altogether might not be the best option though, Corcos said.
“The purpose of allowing comments is to encourage debate on a site,” she said. “If you put a mechanism in place to verify a poster’s identity, that would discourage people from posting at all.”
Reporting on an online comment can be an equally controversial issue, as a high school student journalist recently discovered.
Laura Uncapher, the editor of Hi-Lights, the student newspaper at Boone High School in Orlando, Fla., wanted to report on a student who was disciplined for calling the principal a “dumb-ass” on the school board’s comment site.
The online poster criticized the school board for implementing rules that forced the cross-country team to shower in the school’s locker room, which had no shower curtains. Using his IP address, school officials tracked down the student and punished him, hurting his chances at induction into the National Honor Society and causing him to quit the cross-country team.
When Boone’s principal learned Uncapher was reporting on the story, she refused to let the student paper publish it. After Uncapher appealed to the school board and the district’s attorney, her story never ran.
Editors should tackle the issues surrounding online comments before a controversial post becomes the subject of a news story or a legal battle, Handel said. The first step is usually to develop a guideline for online comments, including when the paper will delete or edit them and whether users can post anonymously, he said.
Handel said comments are proving particularly difficult for student journalists. At the university level, editors are not typically forced to deal with widespread backlash or scrutiny from outside the campus or college town. But an offensive comment on their Web site, Handel said, could spark outrage hundreds of miles away.
“The Internet really erases distinctions between local, national and global, distinctions between professional content creators and non-professionals,” Handel said.
“It erases distinctions between transient or temporary and permanent availability of content. As you have a whole bunch of lines being blurred, a lot more uncertainty gets introduced into the potential direction that court decisions would go.”