Ruling in Ill. anonymous-speech case is a win — for now

Wednesday, November 23, 2011

Although the decision in Stone v. Paddock Publications is being hailed across Illinois as a significant win for online anonymous speech, the ruling ultimately might prove more useful for those trying to strip online posters of their anonymity.

In Stone, the 1st District of the Illinois Appellate Court on Nov. 17 reversed trial-court orders compelling the publisher of the Daily Herald in Arlington Heights, Ill., and an Internet service provider to release information necessary to identify the name of an anonymous poster on the newspaper’s online comment board. In doing so, however, the court agreed with another Illinois appellate court that the standard for obtaining this type of information is relatively low.

Following the reasoning of the 3rd District Illinois Appellate Court in its 2010 decision in Maxson v. Ottawa Publishing Co., the court in Stone held that a potential plaintiff can obtain identifying information about an anonymous online poster as long as the petition seeking the information is in proper form and “sufficiently states a cause of action for defamation.” Therefore, as long as the petitioner claims that the speech about him or her is false and defamatory, and alleges negligence (if the petitioner is a private figure) or knowing or reckless falsity (if he or she is a public official or public figure), the poster’s identity must be revealed.

In Stone, however, the petitioner — a former Buffalo Grove, Ill., trustee claiming a poster had defamed her minor son — could not meet even that low standard.

The poster, identified on the Daily Herald’s comment board as Hipcheck16, exchanged increasingly negative posts on the board with Stone’s son about both Stone and her son’s defense of her. In one comment, Stone’s son challenged Hipcheck16 to identify himself and to “navigate your way over to the Stone confines.”

“Thanks for the invitation to visit you.. but I’ll have to decline,” Hipcheck16 responded in part. “Seems like you’re very willing to invite a man you only know from the internet over to your house — have you done it before, or do they usually invite you to their house?”

Lisa Stone, who at the time was a village trustee, petitioned the court for orders compelling the newspaper and Hipcheck16’s Internet service provider to reveal Hipcheck16’s identity, claiming she needed the information in order to sue him for defaming her son. The trial judge granted the request, saying “the right to speak must be balanced against the right of an offended party to seek redress.”

In reversing the trial court, the appellate court said Stone was not entitled to the information because Hipcheck16’s statements about being invited to the Stones’ home were not defamatory and did not assert any fact about Stone’s son. Therefore, the court concluded, Stone’s efforts to obtain the information amounted to an unpermitted fishing expedition.

“While the law is clear that there is no right to defame another citizen, we cannot condone the inevitable fishing expeditions that would ensue were the trial court’s order to be upheld,” the court wrote. “Encouraging those easily offended by online commentary to sue to find the name of their ‘tormenters’ would surely lead to unnecessary litigation and would also have a chilling effect on the many citizens who choose to post anonymously on the countless comment boards for newspapers, magazines, websites and other information portals.

“Putting publishers and website hosts in the position of being a ‘cyber-nanny’ is a noxious concept that offends our country’s long history of protecting anonymous speech.”

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