Independent Newspapers, Inc. v. Brodie

⁴⁵⁷ ADKINS, J. Concurring. I join in the result, and the well-penned opinion of the majority, except as set forth below. I agree with the first three elements of the majority’s standard, which, in short, requires (1) reasonable efforts to notify, (2) withholding action to allow reasonable opportunity to oppose subpoena, and (3) that the plaintiff identify the alleged defamatory speech. Further, I agree with the majority’s fourth element, although I would offer slightly more explanation of what is sufficient to “set forth a prima facie defamation” action in the context of filing a complaint.

Specifically, the majority is not clear whether or not a plaintiff must make this prima facie showing by an affidavit, deposition, or other statement under oath, 1 or whether mere allegations of fact are sufficient. While either of these procedures may prove workable, the Bar and the Bench would be better served if the majority would clarify this point. I respectfully disagree, however, with the majority’s inclusion of the fifth element, the balancing test. In reaching my decision, I am mindful of the features of Internet dialogue that increase the potential for damage to persons who are the subject of these communications: [T]he relative anonymity afforded by the Internet forum promotes a looser, more relaxed communication style.

Users are able to engage freely in informal debate and criticism, leading many to substitute gossip for accurate reporting and often to adopt a provocative, even combative tone. As one commentator has observed, online discussions may look more like a vehicle for emotional catharsis than a forum for the rapid exchange of information and ideas: Hyperbole and exaggeration are common, and ‘venting’ is at least as common as careful and considered argumentation. The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that ⁴⁵⁸ ‘anything goes,’ and some commentators have likened cyberspace to a frontier society free from the conventions and constraints that limit discourse in the real world. Krinsky v. Doe 6, 159 Cal.App.4th 1154 , 72 Cal.Rptr.3d 231, 237-38 (2008)(quoting Lyrissa B. Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49 Duke L.J. 855 , 863 (2000)).

This “anything goes” mind set, coupled with the virtually unlimited circulation available to bloggers at minimal cost, heightens the danger of injury to the subject of the communication from false or exaggerated statements. I would venture to guess that on the Internet, defamation occurs more frequently and is broadcast to more people than via any other medium, past or present. With this in mind, I am reluctant to set additional barriers to a person seeking to assert a legitimate cause of action to remedy the damage inflicted by a defamatory Internet communication. In my view, the balancing test is unnecessary and needlessly complicated.

See Doe v. Cahill, 884 A.2d 451, 461 (Del. 2005)(“The summary judgment test is itself the balance. The [balancing test] adds no protection above and beyond that of the summary judgment test and needlessly complicates the analysis.”) Although the Delaware court spoke in terms of the summary judgment test, the point is also applicable in a motion to dismiss context. A quick review of the substantive law of defamation bears out this thesis. The common law has a well-developed law of both absolute and qualified privilege and legislative enactments have provided additional categories of privileged communications.

The absolute privilege protects certain defendants absolutely from liability for communications made in certain contexts, such as those made in the course of a judicial proceeding, Reichardt v. Flynn, 374 Md. 361, 367 , 823 A.2d 566, 569 (2003), or communications made by high executive officers that are