Anonymity of Internet Posters Reviewed De Novo

This is an important Illinois case inasmuch as it has generated one of just a handful of appellate opinions that deal directly with the law as applied to internet use and political speech.

Donald Maxon claimed he was defamed by comments posted by unidentified members of the public on a web version of the Times, a newspaper published by Ottawa Publishing Company. Certain unedited comments, Maxon felt, accused him of bribing city council members in return for a favorable vote on a city ordinance.

Ottawa Publishing knew the identities of the commenters, who wrote anonymously on the internet page. Maxon wanted to sue the commenters. To find out whom they were, Maxon filed a petition under Illinois Supreme Court Rule 224 [allowing pre-trial discovery “for the sole purpose of ascertaining the identity of one who may be responsible in damages …”] demanding Ottawa Publishing to identify the commenters.

The trial court denied Maxon’s petition. It ruled that the petition as a matter of law did not defeat the right of the commenters to speak anonymously on the internet, and that the comments were non-actionable opinions. Maxon appealed.

Maxon and Ottawa fought over the standard of review in the appellate court. Appellate review of most rulings on Rule 224 petitions is by the abuse-of-discretion standard, just like review of a typical discovery ruling. But the Third District Illinois Appellate Court ruled that a de novo standard applied in this case. The appellate court used the heightened review standard because “[w]here a trial court’s exercise of discretion relies upon a conclusion of law, our review is de novo.”

In the end, a split appellate court reversed and allowed Maxon’s petition to force disclosure of the commenters’ identities. Read the whole opinion, Maxon v. Ottawa Publishing, No. 3-08-0805 (6/1/10).

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