Maryland’s Court of Appeals today issued a decision protecting the identity of three anonymous Internet posters and, for the first time, offering guidelines for state courts to follow in libel cases before unmasking online commenters.

The opinion and instructions stem from a defamation lawsuit filed by Eastern Shore developer Zebulon Brodie against three unknown Internet posters and Independent Newspapers Inc., which runs an online community forum.

The posters had written critical comments about the cleanliness of a Dunkin’ Donuts that Brodie owns in Centreville.

The Appeals Court concluded that Brodie was not entitled to identifying information about the posters, even though they used the forum to criticize him and his business, because he misidentified which usernames made the offending statements.

The five-step process the court adopted for future cases was borrowed from a New Jersey court and outlined in today’s 43-page majority opinion. It seeks to help trial courts “balance First Amendment rights with the right to seek protection for defamation” by suggesting they:

• Require that plaintiffs notify anonymous parties that their identities are sought.

• Give the posters time to reply with reasons why they should remain nameless.

• Require plaintiffs identify the defamatory statements and who made them.

• Determine whether the complaint has set forth a prima facie defamation, where the words are obviously libelous, or a per quod action, meaning it requires outside evidence.

• Weigh the poster’s right to free speech against the strength of the case and the necessity of identity disclosure.

A five-page concurring opinion by three of the seven judges accepts steps one through three but asks for clarification on step four as to how prima facie nature should be shown and outright rejects step five as “unnecessary and needlessly complicated.”

Baltimore Sun and Wall Street Journal