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United States: Maryland Court of Appeals Sets Standard for Defamation Claims Based on Anonymous Internet Postings

(Mar. 19, 2009) The Maryland Court of Appeals announced a standard for balancing the free speech rights of anonymous posters on the Internet and plaintiffs wishing to sue them for defamation.

The case arose when Zebulon Brodie, a Maryland restaurant owner, filed suit against persons who anonymously posted comments on a website operated by Independent Newspapers, Inc. The trial court ordered that Brodie should be allowed to conduct discovery from the company regarding the identity of some of the posters, and the company appealed this order. The Court of Appeals, Maryland's highest court, granted certiorari to hear the case.

The Court of Appeals ruled that for procedural reasons, Brodie lacked a valid cause of action for defamation, and thus the trial court erred in allowing discovery against the company. The court went on to provide a standard by which to balance rights under the First Amendment to the U.S. Constitution to free speech on the Internet versus remedies for defamation. Synthesizing cases from around the nation, the Court of Appeals held that in cases where a defamation action is brought against anonymous posters of content on the Internet, a trial court should: (1) require the plaintiff to make reasonable efforts to notify posters that they are the subject of a subpoena; (2) allow posters reasonable time to file an opposition to the plaintiff's request; (3) require the plaintiff to declare exactly which poster statements constitute “actionable speech”; (4) determine if the plaintiff has made a prima facie defamation case; and (5) balance the poster's First Amendment free speech rights against the strength of the plaintiff's prima facie defamation case and the need to disclose the poster's identity. (Independent Newspapers, Inc. v. Brodie, No. 63 (Md. Feb. 27, 2009), available at