contrasting emails and instant messages with a "different category of Internet communications, in which users post statements to the world at large without specification," such as on social networking sites
How later courts described this case
- contrasting emails and instant messages with a "different category of Internet communications, in which users post statements to the world at large without specification," such as on social networking sites
- rejecting the Cahill summary judgment test as too burdensome “by requiring claimants to essentially prove their case before even knowing who the commentator was”
- rejecting the summary judgment standard as too stringent, instead adopting the prima facie standard
- adopting the Dendrite standard
Written by the judges who cited it.
The opinion
*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 reasonably related to the officer’s duties, Walker v. D’Alesandro, 212 Md. 163, 170 , 129 A.2d 148, 151-52 (1957).
*459 There are qualified privileges covering a much broader scope of communications. These include, inter alia, communications made (1) to law enforcement officers regarding alleged criminal activity, Caldor, Inc. v. Bowden, 330 Md. 632, 653-54 , 625 A.2d 959, 969 (1993); (2) to protect one’s reputation against defamation, McDermott v. Hughley, 317 Md. 12, 29 , 561 A.2d 1038, 1047 (1989); (3) by or to a credit reporting service, 15 U.S.C. § 1681 h(e) (2006); (4) by an employer in the investigation of suspicious or criminal employee conduct, McDermott, 317 Md. at 28-29 , 561 A.2d at 1046-47 ; (5) by an employer or prior employer to a prospective employer concerning an employee’s job performance, Maryland Code (1974, 2006 Repl.Vol., 2008 Supp.), § 5-423 of the Courts and Judicial Proceedings Article (“CJP”); (6) to someone who shares a common interest, Gohari v. Darvish, 363 Md. 42, 57-58 , 767 A.2d 321, 329 (2001); and (7) in the context of professional peer review in the health care field, CJP §§ 5-637 and 5-638.
Qualified privileges protect the speaker from liability for defamation, but generally are lost when the speaker acts with malice or intent to harm. See, e.g., Di Blasio v. Kolodner, 233 Md. 512, 522 , 197 A.2d 245, 250 (1964)(“An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.”).
Another important doctrine of defamation law rests on the First Amendment, and requires that any public official who sues for defamation must surmount the more difficult burden of establishing that the defendant acted with what is known as “ ‘Constitutional malice[.]’ ” See, e.g., Smith v. Danielczyk, 400 Md. 98, 114-15 , 928 A.2d 795, 805 (2007)(stating that public officials must prove by clear and convincing evidence that the defendant “either knew their statements were false or acted with reckless disregard of whether they were true or false”).
*460 These and other doctrines are all substantive rules of defamation that were developed as part of the common law, including application of the First Amendment principles, and legislative enactment. Each of these embraced a judicial balancing of the interests of the defendant and society in free and unfettered communication against the interests of the plaintiff in a good reputation.
The balancing test adopted by the majority accords to a trial court the authority to decide that a plaintiffs cause of action for defamation shall not go forward, even though it meets, on a prima facie basis, all of the common law requirements, because the court has decided that the defendant’s interests are greater, on balance, than the plaintiffs. But the majority grants judges that discretion, without specifying how the interests that trial courts are to balance differ from the interests that are already balanced in developing the substantive law of defamation. I fear that the majority decision invites the lower courts to apply, on an ad hoc basis, a “superlaw” of Internet defamation that can trump the well-established defamation law. This newly granted balancing authority, ironically, may defeat the balance developed through the judicially developed defamation law when judges refuse to require disclosure of the identity of putative defendants. In doing so, it may become an obstacle to pursuit of legitimate causes of action.
Judges MURPHY and BARBERA authorize me to state that they join this concurring opinion.
. If a statement under oath is required, it should be limited to facts that are accessible to the plaintiff.