December 4, 2015 | Mary V. Cavanagh Mary V. Cava

December 4, 2015 | Mary V. Cavanagh Mary V. Cavanagh
The Internet makes it relatively easy for anyone to anonymously post negative and untrue comments about your business. If you discover that someone is posting derogatory or false comments about your business on an Internet website, blog, or forum, you can sue that person for defamation (and possibly other business-related claims). But if the comments are posted under a username which offers no clues to the Internet poster's identity, can you take legal action to require the owner of the website to reveal the name of the anonymous Internet poster? The answer involves a balancing act between the Internet poster's constitutional right to remain anonymous and your right to seek judicial relief against the Internet poster.

The Internet Poster's Constitutional Rights: Are Anonymous Comments Posted on the Internet Protected Under the First Amendment?

Generally, yes. The First Amendment free speech provision ("Congress shall make no law …abridging the freedom of speech", which the courts have held also applies to the states, protects anonymous speech. Under the First Amendment, an author generally is free to decide whether or not to disclose the author's true identity based on the rationale that having anonymous writings enter the "marketplace of ideas" outweighs the public's interest in knowing the writer's identity. Courts therefore typically protect anonymity under the First Amendment where literary, religious, or political speech is concerned. This First Amendment protection extends to anonymous speech/writing on the Internet, which (at least in theory) allows more participants to engage in public discussion and debate without fear of reprisal.

Different types of speech, whether anonymous or not, receive different levels of constitutional protection. Because of its significance in this country's history, political speech is accorded the highest level of protection. Commercial speech, which is expression related solely to the economic interests of the speaker/writer and the audience, is given a lesser level of protection and will not be protected if it is misleading or related to unlawful activity. Defamatory speech, explained below, generally is not entitled to any First Amendment protection.

Your Right to Sue: What Constitutes Defamation?

Defamation is an intentional false communication that harms the reputation of a person in the eyes of the public. In legal jargon, a plaintiff asserting a claim for defamation must allege and prove that the defendant made false, defamatory statements of or concerning the plaintiff, which statements were published to a third person and caused injury to the plaintiff's reputation. The two types of defamation are slander, which is defamation involving an oral communication, and libel, which is defamation expressed by print, writing, pictures, or signs.

The defamatory words must be communicated to some person or entity other than the defamed person or business. For example, if someone sends an e-mail or a private Facebook message to you or your business without copying anyone else or posting it so that others can see it, it does not constitute defamation, even if it is false.

If the slander or libel consists of statements about your business or profession and the words are defamatory by themselves, without further explanation, it is considered defamation "per se." That means you do not need to prove in court that you or your business were damaged by the defamation; such damages are presumed. If the defamation is not "per se," you would need to prove that the defamation caused you an actual monetary or economic loss.