Who is That Masked Blogger?

By: Michael S. Dalrymple - Associate, Ice Miller, LLP

Category: Blogging

In recent years, the phenomenon known as blogging has altered public discourse and the concept of free speech in ways few ever imagined.

Continued Below...

Jeff Patchen, President and CEO, The Children's Museum of Indianapolis

In a Studio(i) interview, The Children's Museum of Indianapolis Presiden...

Jerry Conover, Director, Indiana Business Research Center

In a Studio(i) interview, IBRC Director Jerry Conover talked about both ...

Matt Gutwein, CEO, Marion County Health and Hospital Corp.

In a Studio(i) interview, Gutwein discusses the Wishard project with Ins...

According to the Pew Internet & American Life Project, Internet users are more likely to read a blog while surfing than they are to purchase a product or listen to music. Instant access to a world-wide audience has encouraged bloggers, by the millions, to express their views and opinions on issues ranging from the shortcomings of the latest reality show to the failures and foibles of their supervisors. When discovered, employers have taken note, and often offense, to negative comments made by their employees. If the employee identifies him/herself, an employer must devise an appropriate response to the conduct.

The issue is complicated, however, if the blogger remains anonymous. Airing negative reports, trade secrets, or defamatory comments can produce devastating results, including loss of sales and a tarnished public image. Yet, revealing the masked blogger may prove more difficult than anticipated. The law weighs an employer's ability to prevent defamation against an individual's right to engage in anonymous speech. Courts are far from the point of defining the appropriate balance and are still searching for ways to accommodate the interests of the defamed employer and the anonymous blogger.

When an employer learns of a defamatory blog and wishes to pursue a remedy in court, the first step is to identify the author. Generally, the identity of the blogger may be determined by reviewing the records of the host Internet service provider of the blog. A court will issue a subpoena to obtain the records, but will also permit the Internet provider and the blogger to resist the subpoena. In most cases, a court will permit the blogger to defend him/herself anonymously, until the initial determination of the identity is resolved. This determination is crucial to the success of the employer's case. Without an identified blogger, the employer's case will end almost before it begins. The blogger will likely argue that the First Amendment of the Constitution protects the anonymous speech. Importantly, because the subpoena, and its enforcement, constitute state action, both public and private employers must contend with the constitutional issue.

Freedom of speech is protected by the First Amendment of the Constitution. Anonymous speech is not only protected by the First Amendment, but has played an important part in American history. For example the Federalist Papers were published under the pseudonym of Publius. While speech containing a political message enjoys a high level of protection, even restrictions on non-political speech garners scrutiny by the courts.

Applicable case law remains scarce in this area, but one influential decision sets forth four factors to guide a trial court's decision-making process. The case is Dendrite International, Inc. v. Doe. According to this decision, a court should first provide notice to the anonymous blogger and an opportunity to be heard. Next, the court should require the employer to state its claim with some specificity. Third, the court should entertain evidence to determine whether the complaint would survive a motion to dismiss and whether the employer can produce sufficient evidence to support its claim. Finally, if the employer convinces the court that it can support its claim, the court must balance the blogger's First Amendment right of anonymous free speech against the strength of the employer's case and the necessity for the disclosure of the anonymous blogger's identity to allow the employer to proceed.

If an employer is able to satisfy this onerous test, the Internet provider must produce its records, and the blogger's identity will be revealed. If not, the case is all but finished. The growing acceptance of this test has encouraged employers to seek out the identity of anonymous bloggers without the assistance of the judicial system. Of course, any internal or private investigation presents a new set of potential pitfalls and may not avoid constitutional claims by discovered bloggers.

Employers should be concerned with the growing impact of our modern-day electronic soapbox, and be ready to defend itself against defamatory and other tortious activity. On the other hand, employers must remain cognizant of the risk of a First Amendment defense by the blogger who relies on freedom of speech to remain anonymous. Time and experience will produce a more predictable framework for court action. Until then, employers should be aware of the potential for negative blogging and be creative in responding to each incident.

To view the past 6 months of archived Perspectives, select an article from the dropdown below and hit 'View':

To search the archive of Perspectives articles, go to the Search page