By Bill Manny
Newspapers are experimenting with crowd-sourcing, tapping the collective expertise of online readers to report news events, collect information or analyze complex data. Lawyers are looking for ways to tap our online readers for information, too. In the past several years, my paper, the Idaho Statesman has had about a half-dozen cases where lawyers filed subpoenas, or queried in advance of a subpoena, asking for the identity of an online commenter.
We’ve had cases of lawyers who want the identity of commenters who appear to have knowledge of a crime. We’ve had a lawyer who wanted the identity of an apparently knowledgeable commenter who harshly criticized his handling of cases. In one instance, a prosecutor sought the identity of an online commenter who appeared to be an accused criminal, explaining why he did what he did in the comments on the Statesman story about his arrest.
We still get the occasional threat of traditional legal action, but requests for information about online commenters have become the most common reason we end up consulting our lawyer.
Permitting anonymous commenting online is one of the most controversial things we do. Many of our reporters hate it; many can tell you stories about sources who call panicked or upset – not about the story, but about how they’re being shredded by anonymous story commenters online. Other reporters have had sources decline to talk at all, because they don’t want to see themselves or their causes attacked online.
Nonetheless, comments are a popular, engaging, interactive feature. And all of us like the freewheeling spirit of the web, even if it conflicts with our old-fogey journalist notions like checking our facts or holding people accountable for what they say. At most newspapers, reporters use anonymous sources only sparingly, and most editors demand to know who the source being granted anonymity is. All of us have fairly elaborate systems for verifying the identities of every letter writer. So letting virtual letter writers anonymously spout off however they like in our online newspaper is hard for traditionalists to take.
So we have the free-wheeling anonymity of the web vs. the strict sourcing traditions of newspapers. You have the unfettered, unedited options of the web vs. the tradition of civilized editorial pages, where disagreements are respectful and writers vetted and edited. And you have the protections newspapers have zealously guarded for their print sources vs. an entirely new kind of “source” who is providing the newspaper “information” that it neither asks for nor necessarily wants.
The irony is that Congress and the courts are responsible for this state of affairs. So far, the courts have essentially told newspapers and other website operators that if we are moderating or editing the comments, then we could run the risk of incurring liability. So the policy is hands-off.
CHANGES ARE COMING
Staying legal is important, but letting online commenters spew hate or distort the facts is hard for editors to take. Many of us are looking for alternatives. Many sites are giving fellow commenters more power to flag inappropriate comments, or vote them off the island entirely. Others are looking at the Facebook model. Today, for instance, the Statesman has its own registered users on our Disqus commenting software, as well as Twitter and Facebook account-holders who can comment. If every commenter had to come from Facebook, you’d have less trouble because there’s no tradition of anonymity there, and you have the self-enforcing accountability of the users’ community.
Just this month, the Yakima Herald ended anonymous commenting and will require commenters to use their real names. “The system we established in 2008 to foster conversations between the newspaper’s readers, our website’s visitors and ourselves has too often resulted in ugly, nasty or meaningless dialogue,” Editor Bob Crider wrote.
SO HOW DO WE HANDLE SUBPOENAS?
In each of the cases the Statesman has faced, we’ve been able to get subpoenas aborted or withdrawn. In most cases, people register with false personal information. In only a couple of our commenter-identity cases, did we have valid email addresses for commenters; we have never had a real name. Once we explain that to the lawyer, that usually ends the conversation.
In the case of the lawyer whose practice was being criticized, it turned out that he really just wanted to talk to the commenter. He withdrew his demand and I passed along his phone number to the commenter, who agreed to call him.
In the case of the confessing criminal, clicking on the user name took you to the Facebook page of the accused, which seemed to leave little doubt about his identity. We showed that the commenter was registered with Facebook and not the Statesman, and the case went away.
But not all cases are going to go away. One of these days, a determined Idaho lawyer is going to challenge a newspaper disinclined to protect an online commenter. And when that happens, commenters are going to learn that the anonymity of the web doesn’t come with a guarantee.
In March, an Indiana judge ordered the Indianapolis Star and the Indianapolis Business Journal to identify commenters after ruling that the state shield law doesn’t protect online commenters when it comes to a defamation suit.
Are newspapers going to hire lawyers to go to court to protect commenter identities? What if the comments are racist? What if the commenter admits a crime? Do we spend money to protect outrageous, libelous, hateful commenters who lie to us by registering with false names or e-mail addresses?
For the Statesman, it’s never come to that. McClatchy has clarified our online commenting policy to make it clear that commenters cannot count on us protecting their identity when faced with a subpoena or a request from law enforcement. So, even in the freewheeling world of the net, mom’s advice may be as valuable as any lawyer’s: Think before you speak.
Bill Manny is the Sunday/local news editor for the Idaho Statesman in Boise.
