Can the comments of anonymous online users provide the basis for a plaintiff’s defamation suit? If the users are expressing their opinion, the answer is probably no.

In Varrenti v. Gannett Co., Inc, the chief and three officers of the Brockport (N.Y.) Police Department sought to compel the Rochester Democrat & Chronicle to reveal the names and addresses of four anonymous individuals who had commented on two articles posted on the newspaper’s website between January 17 and January 20, 2011. Varrenti v. Gannett Co., Inc., 2011 NY Slip Op 21296 (N.Y. Sup. Ct. Aug. 3, 2011). The comments referred to the officers by nicknames and questioned the general effectiveness of the Village’s police department. The plaintiffs alleged that they were defamed by the anonymous defendants’ comments.

While the First Amendment protects anonymous speech, defamatory speech – whether by anonymous or identifiable sources, in print or online – is not protected. Id. at 6. However, as the Court discussed, “[e]xpressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.” Id. Therefore, if the Court determined that the anonymous defendants were merely expressing their opinions, the comments could not be the subject of a defamation suit.

The question of whether a particular statement reflects an opinion or an objective fact is a question of law for the court to decide. In order to determine whether a statement is an opinion or fact, courts consider the following factors:

1) Whether the specific language at issue has a precise meaning which is readily understood,

2) Whether the statements are capable of being proven true or false, and

3) Whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.

Id. at 7.

Courts place a particularly strong emphasis on the third factor, which requires “consider[ing] the content of the communication as a whole, as well as its tone and apparent purpose.” Id. This includes looking to the overall context in which the statements were made and determining “on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the libel plaintiff.” Id. at 8.

In this case, the Court determined that the reasonable reader would interpret the statements as opinions of the anonymous defendants and, consequently, they could not be the subject of a defamation suit. “The tone of the comments was sarcastic, hyperbolic, and based on rumors that the anonymous posters heard around the Village of Brockport and about the Department,” the Court said. “Moreover, the apparent purpose of the comments made by the…defendants was to call for an investigation into the Department’s practices.” The Court’s finding was additionally influenced by the nature of the location in which the comments appeared: a message forum inviting readers to share their opinions on local news matters.

The Court’s decision grants strong protection for those posting critical commentary behind anonymous usernames. This decision is particularly significant for those who find themselves as the subject of criticism in online message boards. As long as opinions are deemed privileged, plaintiffs will struggle to recover on defamation grounds.


© 2011 Nissenbaum Law Group, LLC

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