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COA rules on anonymous online commenter case

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In a case of first impression, the Indiana Court of Appeals has ordered the trial court apply a modified test based on a New Jersey case to determine whether The Indianapolis Star must identify an online user whose comment is part of a defamation lawsuit.

Jeffrey Miller, former CEO of Junior Achievement of Indiana, sued multiple parties for defamation, and sought to add people who made anonymous comments on news organization websites that ran stories about Miller and Junior Achievement. The Star wrote an article concerning Junior Achievement facing questions and an audit about a building project, to which an anonymous poster, “DownWithTheColts,” wrote, “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the [Foundation] board. The “missing” money can be found in their bank accounts.”

Marion Superior Judge S.K. Reid issued an order in 2011 to the Indianapolis Business Journal, a sister publication of Indiana Lawyer; The Star; and WTRV-TV Channel 6 that the news outlets must identify people who posted comments on their websites. At issue is whether The Star has to provide Miller information to help him identify “DownWithTheColts.” The Star is the only news organization that did not comply with the discovery requests.

In In Re: Indiana Newspapers, Inc. d/b/a The Indianapolis Star, Jeffrey M. Miller & Cynthia S. Miller v. Junior Achievement of Central Indiana, Inc.; Jennifer Burk; et al.,
No. 49A02-1103-PL-234, the judges decided the heart of the case is whether “DownWithTheColts” is “the source of any information” under Indiana’s Shield Law. The judges compared the online comment forum to that of a bulletin board outside of The Star’s office building that asks for anyone to tack an announcement. The newspaper did not use the comment by “DownWithTheColts” to write its story or as a lead for another story. An anonymous commenter is not a source as envisioned by Indiana’s Shield Law, and this holding is consistent with the state’s Legislature’s intent, wrote Judge Nancy Vaidik.

The appellate court then turned to the anonymous speech rights under the state and federal constitutions. They found that the statement made by “DownWithTheColts” is defamatory per se, and while Miller has alleged that the statement made was false, he hasn’t yet provided any proof of this, which is necessary for his defamation claim to move forward, wrote Vaidik. And, it will be impossible for him to make a showing of actual malice under Indiana law without the identity of “DownWithTheColts.”

“While we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters,” she wrote.

The judges decided the Dendrite test, which comes from a New Jersey case involving anonymous commenters on a Yahoo! message board, draws the most appropriate balance between protecting anonymous speech and preventing defamatory speech. But because of the requirement to prove actual malice here, the judges adopted a modified Dendrite test which requires the plaintiff to produce prima facie evidence to support only those elements of his or her cause of action that are not dependent on the commenter’s identity. Prima facie evidence of actual malice is not required.

The COA sent the case back to the trial court to apply the modified version of the Dendrite test under both the federal and state constitutions to determine if Miller has satisfied the requirements for obtaining the identity of “DownWithTheColts.”

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  1. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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