Litigation against pseudonymous bloggers on the net

January 18, 2013 |

In Dangerous chat the Economist highlights a live and growing issue, defamation by the supposedly anonymous on the net.  In this case lawyers in the US Attorney’s office engaged in, at best, tasteless commentary on active federal cases and judges.  The article provides:

THE 11-year run of America’s longest-serving federal prosecutor came to a bizarre end last month. Jim Letten, the US attorney for Louisiana’s eastern district, resigned after a still-simmering scandal was uncovered in his office. Mr Letten has not been accused of wrongdoing. But two of his top lawyers admitted posting a slew of rants, under pseudonyms, on a leading news website in New Orleans. Many of their remarks concerned active federal cases and sitting judges. Mr Letten fell on his sword.

Remarkably, the unmasking of the two rogue prosecutors was engineered by Fred Heebe, a landfill magnate, who was almost appointed US attorney himself a decade ago. The nod went instead to Mr Letten. More recently, Mr Heebe was the focus of a sweeping federal probe into whether his strenuous efforts to secure a near-monopoly in the local waste-disposal business had crossed into illegality. (In America, and in Louisiana especially, investigations into white-collar crime and political corruption often fall to federal authorities. Mr Letten had become a folk hero in New Orleans for securing convictions of local politicians.)

The episode is a cautionary tale about the perils of the internet. Although many people think the anonymity that veils their online rants is absolute, plenty of jurisprudence argues otherwise. If a target of anonymous attacks can make a credible claim of defamation, he or she has some legal right to find out who is doing the defaming—the First Amendment notwithstanding.

In the present instance, the case law has not really been tested. When Mr Heebe filed civil-defamation claims, both prosecutors confessed to their online pseudonyms. One of them, Sal Perricone, favoured Latin phrases and antiquated words like “dubiety” and “redoubt”, which made it easier for Mr Heebe—and the former FBI forensic linguist he retained—to finger him.

Once a commenter is unmasked, it changes the meaning of his posts. These are no longer the thoughts of a loon who loafs in his underwear all day, but the informed opinions of a powerful official. A throwaway remark that a certain politician is a crook may normally attract little attention, but when the accuser is known to be a fed, the reader naturally wonders whether he has some evidence to back his claim.

Naturally, a host of federal targets—including some who have already pleaded guilty or been convicted—are now crying foul, saying the commenting amounted to a campaign to sway public opinion and poison the jury pool. Among those trying to make hay are the five New Orleans police officers convicted in mid-2011 for the Danziger Bridge shootings after Hurricane Katrina, and the former chief executive of the largest suburb in the city, who last year pleaded guilty to corruption charges.

As those skirmishes play out, an inquiry is under way into whether other feds were dabbling in the comment stream. (The charge is that the outed prosecutors were, in essence, conducting a public conversation through their online comments.) A special prosecutor from Atlanta has subpoenaed information about 11 other anonymous comment-makers.

Mr Letten, meanwhile, has been replaced for the moment by Dana Boente, who served as the second prosecutor in Virginia’s eastern district. A permanent appointment will be made by Barack Obama, with Senate approval; Mary Landrieu, Louisiana’s senior Democratic senator, will probably have a big say. Presumably, Mr Letten’s replacement will stay far away from the chat rooms.

In Australia there are comprehensive court rules at State and Federal Level and long standing common law authority permitting non party discovery requiring a party to divulge the name of another person that is in the knowledge or control of the first party provided a court is satisfied there is a sustainable action against the second party.   The fact that someone seeks to use a pseudonym or act anonymously on the internet does not prevent non disclosure.  After identifying such a person the laws of defamation apply.

Leave a Reply