Philly Court Orders Website To Unmask Anonymous Commenter 'Named' In Defamation Suit [Update]

from the not-all-that-'anonymous'-once-you-start-looking dept

Anonymous commenters are often held up as examples of the worst aspects of the internet. It's an enabler of abhorrent behavior, as the lack of identification allows people to make statements without suffering consequences. Of course, this isn't the only "benefit" of anonymity, but it's the one that gets the most press, so to speak.

A new website has just been ordered to turn over information on an anonymous commenter who's currently the target of a defamation lawsuit.

A Philadelphia judge has ordered the owners of Philly.com - who also own The Inquirer and the Philadelphia Daily News - to disclose the identity of a person who posted a comment online.

The ruling came in a defamation suit filed by John J. Dougherty, the powerful head of Local 98 of the International Brotherhood of Electrical Workers.

In October 2012, Dougherty sued over a comment posted two months earlier on a Daily News blog that described a public feud involving Dougherty. The comment identified Dougherty by his well-known nickname, "Johnny Doc," and called him "the pedophile."

Dougherty sued the anonymous poster, and his lawyers subpoenaed Philadelphia Media Network, Philly.com's parent company, to supply the person's identity.
Philly.com apparently has more than just an IP address on hand. (Or just did a minimum amount of research -- more on that below.) The report notes that Philly.com contacted the anonymous poster to make sure "he or she got notice of the lawsuit and hired a lawyer." The anonymous poster (screen name: "fbpdplt") has, so far, maintained his/her anonymity during the legal proceedings and is being represented by Philip L. Blackman, who claims the specified comment isn't "defamation per se."

As you'll note, Philly.com made contact with the anonymous commenter, something the plaintiff should have done. A "good faith effort" by the party bringing the suit is supposedly required according to the Dendrite rules, (which Pennsylvania courts have adopted in modified form) but as I detail below, it looks as if little to no effort was made by Dougherty or his legal team to track down the person behind the screen name "fbpdplt." Dougherty did at least specify which comment ("the pedophile") was actionable and presumably presented some evidence to the contrary, but it appears the court made no real attempt to balance the commenter's First Amendment rights versus the plaintiff's complaint before deciding unmasking was the only way to handle this.

Philip Blackman has pointed this out, claiming the court's actions threaten his client's free speech. Defamation isn't protected by the First Amendment, but whether the comment actually is defamatory still hasn't been decided. On the other side of the legal fence, Joe Pedraza, attorney for John Dougherty, feels this is a forgone conclusion.
In the Dougherty case, the union leader's lawyers contended that he had a defamation claim likely to succeed at trial but no way of communicating with or identifying the person being sued.
Right or wrong, Philly.com did at least put up a fight. It turned down Dougherty's subpoena, stating it would only reveal the commenter's information with a court order. The order itself is fairly expansive, not only asking for identifying info, but also for all comments posted by "fbpdplt" from August 2012 thru January 2014. (Apparently, only one comment is currently being referred to as defamatory.)

But you have to wonder why any of this is necessary. Did anyone on Dougherty's legal team even bother searching around for the person behind the "nonsense" screen name "fbpdplt?"

The screen name isn't just a nonsensical jumble of letters. The keys are too far apart to make it a simple "mash keyboard; get screen name" effort. Searching those characters brings up this profile over at conservative website The Blaze.




As you can see, fbpdplt's profile uses a fireman's hat, something the screen name hints at. fbpdplt also left this comment reviewing the Philadelphia Fire Department, which seems to indicate he's an insider [the comment is only visible in the text-only archive]:

under a lot of strain
They have been doing more with less for years. Lip service from politicians and no support from IAFF or the so called union brotherhood…
The same screen name shows up at Sailnet.com, a sailing community forum, which contains a profile listing fbpdplt's real name and address. Searching for that name brings up this profile at Boat Talent, which contains this useful bit of biographical information:
Former Phila Fireboat Pilot
Fire Boat [PhilaDelphia??] PiLoT = fbpdplt

This would appear to be the post where fbpdplt called John Dougherty a "pedophile." (The date on it is August 10,2012, matching up with Philly.com's narrative -- contacted in October 2012 about a post from "two months earlier".) There are currently no comments on the post. But there was at one time. Searching "fbpdplt johnny doc" brings up this post on the first page, meaning that at some point, the comment was there to be cataloged by Google. The Wayback Machine is no help, suggesting Philly.com has had it removed from there as well. Adjacent posts from the same month are archived, meaning there's no sitewide block on the Internet Archive's crawler.

Using site specific searches for "fbpdplt" only brings up a short list of comments on various Philly entities and services at Philly.com (and no hits at all at its other sites, Inquirer.com and phillydailynews.com), but no comments on news articles or blog posts. The only comments showing up in search results are hidden from readers, accessible only through archived, text-only versions.

So, it would appear that Philly.com scrubbed its site of fbpdplt's presence after being notified of his allegedly defamatory comment. Not exactly innocuous behavior. The question is why it would do this. It's not a named party in the lawsuit and Section 230 protects it from being held accountable for third-party content. It looks, sadly, like a panicked move to clean up its image in the wake of being served a subpoena.

Seeing an anonymous commenter go down for posting possibly defamatory comments usually prompts cheers from those who consider online anonymity to be only the tool of trolls and jackasses. But an attack on anonymity also threatens those who have good reason to withhold their identity -- or just feel more comfortable not making their personal info available for every commenting system that comes knocking. It also pushes site owners to move towards requiring Facebook or Twitter connections for all commenters.

Beyond all that, this appears to be a very sloppy case. The plaintiff's legal team apparently made only a minimum of effort made to uncover the anonymous (but not really) commenter before deciding to pursue subpoenas and court orders. Philly.com's comment scrubbing efforts were not only unnecessary, but give the appearance of covering up evidence. John Dougherty has now been provided a name, but it's up to his legal rep to prove the comment was defamatory. Proving damages will be even tougher, unless Dougherty's team is willing to advance the notion that an anonymous online commenter is capable of influencing the opinion of a great many Philly.com readers, which seems unlikely to say the least.

[Update: Paul Alan Levy of Public Citizen (which has appeared in these pages more than once, most recently for suing on behalf of KlearGear's victim, Jen Palmer) has put together a post at the Public Citizen blog detailing the questionable assertions made in this post. Levy was kind enough to ask for my reasoning behind some of the claims I made and took that into account when composing his response. (He was also kind enough to not name me in his post, but I'm outing myself.)

As I told him, some of my assertions were related to my misreading of a key aspect of the case. I thought the defendant hadn't been notified until the court ordered Philly.com to reveal the commenter's identity. In fact, the commenter had been notified nearly a year ago, when Philly.com was first hit with the subpoena. That misreading led to me questioning the court's application of the Dendrite rules and, of course, that misguided thought also bore its own weight on the remainder of the post.

Levy's post rightly asserts that it's very dangerous (and irresponsible) to draw too many conclusions from a dearth of information, as I did here. He also warns against automatically assuming the demand to strip anonymity is also an attack on free speech. Clearly defamatory comments/libel per se aren't protected by any stretch of the First Amendment and free speech defenders need to steer clear of presenting a "sky is falling" scenario when the facts available don't actually suggest that.

Levy's entire post is worth reading, whether you feel I'm a worthwhile contributor or not. Either way, you'll take something away from it. I know I did.]


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Mar 10th, 2014 @ 11:21am

    Anonymous commenters have a long history in the US

    See silence dogood.

    Some of our greatest founding fathers were commenting Anonymously before there even was an internet

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Mar 10th, 2014 @ 11:35am

    Bonus Points...

    If the anon post was from a Wifi Cafe. Extra Extra bonus points if the post came from the Organizations own free Wifi to visiting vendors!!!

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    That Anonymous Coward (profile), Mar 10th, 2014 @ 11:38am

    *heh*
    It is amazing to see how many lawyers seem to lose the ability to follow guidelines.
    How often we notice that it seems "good faith efforts" now seem to be just asking one's keyboard if it knows and then moving forward.

    It is sad to see "on the internet" seems to have a magical quality that seems to confuse the law. It is also odd that while they are suing over something specific, they want a giant dragnet of information provided to them so they can look for something else to complain about.

    I guess having to do ones own research is to hard.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    zip, Mar 10th, 2014 @ 11:40am

    Does Techdirt have any policy regarding logging user information and turning it over to third parties?

    Not that policies necessarily make a difference, as even sites that openly promoted themselves as 'anonymous' and 'secure' have been known to hand over user details without a court order -- or even a lawsuit.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Mar 10th, 2014 @ 11:56am

    Moral of the story, don't let your online tail grow too long.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Mar 10th, 2014 @ 11:59am

    How do we know they didn't do research or made a good faith effort to find this person? For all we know, they did research and had a pretty good idea of who this person might be, but it would probably be just as logical to also subpoena philly.com to confirm the identity.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    John Fenderson (profile), Mar 10th, 2014 @ 1:53pm

    I don't think I have a probelm here

    I haven't seen the entire offending comment, but if it simply says "Johnny Doc is a pedophile" as a statement of fact rather than opinion or obviously hyperbolic insult, and it is not actually true, then it is in fact defamation. A court ordering that the commenter be identified (assuming the paper is capable of doing that) seems both legal and reasonable to me in this sort of situation.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Mar 10th, 2014 @ 4:26pm

    If someone on the internet called me a pedophile, you know what I'd do? I'd say to myself, "Oh great, who let this guy out of 4chan?" Notice the complete absence of a lawsuit.

    Based on how Dougherty's reacting, it sounds like he really does have something to hide. Hopefully, his dragging some random person into court for calling him a pedophile will result in people looking into whether he really is one.

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    Anders K. Nielsen (profile), Mar 11th, 2014 @ 3:16am

    Difference between namecalling and ...

    There is a difference between name calling and actually mark someone as a pedophile, and if it's just name calling, it's not defamation.

    If the guy has said something like, "He is a pedophile, because he touch his kids." that's a whole lot different then "Fucking pedophile", which would be the same as calling someone a fruitcake.
    It doesn't mean they think the person is a pedophile or cake made of fruit, but just that they are a shithead, which I guess Johnny Doc is refereed as.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    jamie brouhard, Mar 16th, 2014 @ 5:56pm

    Defamation has to stop

    To fight is the most important thingÖ.I am here to share my story. Donít give up, stay strong. Each day someoneís life is changed from a post online. Letís make sure the future laws protect us.

    http://www.youtube.com/watch?v=8Uyq4OP-ZLA

    http://www.bullyville.com/?page=story&id=7300

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Blah blah, Apr 7th, 2014 @ 8:36pm

    Fbpdplt

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Blah blah, Apr 7th, 2014 @ 8:39pm

    Re: Fbpdplt

     

    reply to this | link to this | view in thread ]


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