Court adopts protections for anonymous posters


The Indiana Court of Appeals issued a ruling today holding that the First Amendment and the Indiana Constitution require a defamation plaintiff to clear significant hurdles before compelling the disclosure of the identity of someone who posts comments on a website.

This ruling puts Indiana squarely in line with other states that have adopted heightened protection for Internet posters over the past decade.

The Hoosier State Press Association Foundation and several state media outlets urged the court to take this position in an Amicus brief.

Previously, a trial court had ordered The Indianapolis Star to turn over identifying information about a poster, “DownWithTheColts,” who commented on coverage of financial questions about the former head of the area’s Junior Achievement program.

The Star appealed on the bases that the state shield law protected the commenter’s identity.

The Amicus brief supporting The Star that urged additional protections in line with decisions from a variety of courts that have found protection under the First Amendment and state constitutional rights to anonymous speech.

In this opinion, the court rejects The Star’s position under the shield law on grounds that “DownWithTheColts” was not a “source” as defined by the statute.

The court, however, agrees with tests in New Jersey and Delaware pointed to in the Amicus brief.

Under the test Indiana adopted, to obtain identifying information about a poster, plaintiffs will now need to show:

• The poster has been notified of the subpoena and allowed time to obtain legal representation.

• The exact statements the plaintiff believes are defamatory.

• That he or she has evidence to support every element of the claim, except actual malice. The court removed actual malice from the requirements, finding that plaintiffs can’t make that kind of showing without knowing the source. That still requires that a plaintiff present evidence of falsity and damages.

• The balance of interests weighs in favor of disclosure.

The court remanded the case to the trial court to see if the plaintiff can meet this new test in The Star case.