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On June 18, the Illinois Supreme Court issued a ruling that requires Comcast to disclose the identity of an anonymous commenter to a newspaper website. The facts as stated by the Court are as follows:

“On December 28, 2011, the Freeport Journal Standard published an online newspaper article entitled “Hadley returns to county politics. Candidate stresses fiscal responsibility.” The article discussed plaintiff Bill Hadley’s decision to again seek election to the county board of Stephenson County, Illinois. Online readers could post comments in response to the article after completing a basic registration process. On December 29, an individual using the name “Fuboy” posted the following comment: “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire (a local school) from his front door.” Fuboy also made a second comment, stating: “Anybody know the tale of Hadley’s suicide attempt? It is kinda ‘It’s a Wonderful Life’ with Pottersville win[n]ing out. We can just be happy that Stephenson County is fortunate enough to have this guy want to be of ‘service’ again.”

After giving the history of the case’s journey through the court system, the Court concluded that, under Illinois law, the ISP (Comcast) must identify the person whose name is associated with the IP from which the comments originated. Comcast advised Hadley’s counsel that it was preserving the records and information requested; that it had the name and address of only one account holder of the IP address at issue; and that it required a court order directing it to provide Hadley with the information.

Fuboy, through his/her/its attorney, claimed that the comments were opinion and thus protected. The Court used a three-part analysis to conclude that they were not:

• Whether the statement has a precise and readily understood meaning;
• Whether the statement is verifiable; and
• Whether the statement’s literary or social context signals that it has factual content.

The Court, with what I consider to be a very large dose of tongue in cheek concluded:

“Unless we are prepared to hold as a matter of law that nothing published on the Internet is capable of being interpreted as factual, the mere fact that the allegedly defamatory statement is published on the Internet does not render it hyperbole.”

While this appears to be a pretty clear cut case of somebody trying to hide behind an alias to commit actionable defamation, it does raise the issue of how far a news outlet should go in allowing inflammatory remarks that are now the hallmark of practically every major news site. I’m sure a lot of it has to do with the fact that with limited resources, comment editors are the first to go.

It’s important to note that this decision isn’t a finding that defamation actually occurred, or if Mr. Hadley is a “public figure” under the Sullivan rule, thus giving Fuboy greater latitude in publishing his comments. This decision goes only to the issue of determining if an internet service provider can be required to disclose the identity of someone who makes statements that appear to be actionable. To the extent that the decision is limited to this narrow issue, the Court probably got it right. The Court concluded that the statements indicated defamation per se (alleging the commission of a crime) but it used that conclusion only to rule that if Fuboy made a motion to dismiss, Hadley had met the burden needed for that motion to be denied under Illinois Supreme Court rules.

I suppose there will come a point at which the larger sites will start to see such things hitting their bottom lines, at which point there’ll be some self-policing of comments. But unless that self-policing occurs, we may see the Hadley case used as a precedent for further attempts to erode first amendment rights.