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Wednesday, February 22, 2012

Ind. Decisions - "Appeals court rules online commenters not protected news sources"

Yesterday's COA decision in In In Re: Indiana Newspapers, Inc. d/b/a The Indianapolis Star, Jeffrey M. Miller & Cynthia S. Miller v. Junior Achievement of Central Indiana, Inc.; Jennifer Burk; et al. is the subject of several news stories today.

Dan Carden reports in the NWI Times:

INDIANAPOLIS | The identities of anonymous commenters on newspaper websites are not protected under Indiana's journalist Shield Law, and newspapers may be compelled to disclose them under certain circumstances, the Indiana Court of Appeals ruled Tuesday.

In a 3-0 decision, the appeals court said protection for sources under the Shield Law, which exempts a newsperson from divulging a source even under court order, does not apply to online commenters because their comments are only posted after the newsgathering process is complete and a story published. * * *

The Star claimed "DownWithTheColts" is a protected source and does not have to provide Miller with the identity.

The court disagreed with the Star, saying if the online comment led to further reporting there would be justification for protecting that commenter as a source, but that didn't happen in this case.

"The Star merely provided a place for 'DownWithTheColts' to place his comment similar to if The Star had placed a bulletin board outside of its office building for anyone to tack an announcement," wrote Judge Nancy Vaidik, a Porter County native. "For this reason alone, we determine that the anonymous commenter was not a source as envisioned by our Shield Law."

In addition, the court said the Shield Law expects reporters and editors will weigh the credibility of news sources before deciding whether to disseminate their information to the public.

No one at The Star applied any editorial judgment to the comment from "DownWithTheColts," which further distinguishes it from a legitimate, protected news source, Vaidik said.

In its 33-page decision, the appeals court said it's necessary to balance the benefits of anonymous speech while permitting action against defamatory speech, which is not protected by the Constitution.

To that end, the court adopted a recommendation by The Times and other media companies and said alleged victims of anonymous defamatory speech who can show evidence of defamation that is not dependent on the commenter's identity can obtain a court order requiring a newspaper disclose the identity.

A side-bar to the story sets out the NWI Times comment policy:
Commenting on nwi.com

The Times Media Co. requires users register to comment on stories on nwi.com using a valid email address. However, users do not need to submit their name or other identifying information.

Comments are not premoderated, but registered users can use a "report abuse" button to inform online staff of comments that violate standards. Improper comments will be taken down, and user accounts can be banned for extreme or repeated violations.

The Indianapolis Star headline, to a story by Bruce C. Smith in its business section: "Indiana appeals court reverses order to identify online commenter: The Star, couple suing to learn identities see positives in ruling returning issue to lower court." Some quotes:
Both sides in a lawsuit over disclosure of the identity of anonymous posters on news media websites were left partially satisfied with an Indiana Court of Appeals decision released Tuesday. * * *

In a 33-page ruling, the appeals court reversed the order of Marion Superior Court Judge Jamie A. Maddox, who had said the newspaper should disclose the identity of the commenter on its website.

The appeals court ordered the issue back to Marion Superior Court, where Judge Michael Keele is to hold a hearing to consider whether the Millers can show they were damaged by the comments.

Keele is to use a new legal standard partially borrowed by the appeals court from a 2001 New Jersey case involving Dendrite International against an anonymous poster on a Yahoo message board.

The new legal test for whether posters must be identified attempts to balance the right of free speech with the damage caused by an alleged defamation. The new standard does not require the Millers to prove malice was behind the accusations.

Here is a long list of earlier ILB entries on the case. Note this Nov. 29, 2011 ILB entry, re the Indianapolis Star changing its comment policy: "As of Tuesday, Nov. 27th, 2011, comments on Star stories will no longer be anonymous. Indeed, the only way to submit comments will be through your Facebook account."

Posted by Marcia Oddi on February 22, 2012 08:22 AM
Posted to Ind. App.Ct. Decisions