Indiana newspapers may be ordered to release commenter identity in defamation suits

I'm sure we all agree that one of the greatest achievements of the Internet has been to allow common folk to anonymously comment on newspaper articles. The good people of this country have managed to use that feature without resorting to bigotry or defamation, right? Well, maybe not in Indiana.

In In re Indiana Newspapers Inc. v. Junior Achievement of Cent. Indiana, the Indiana Court of Appeals addressed whether a newspaper can be compelled to disclose the identity of an anonymous commenter to a plaintiff in a defamation suit. 2012 WL 540796 (Ind. Ct. App. 2012). The court considered Indiana's Shield Law, which "provides an absolute privilege to the news media not to disclose the source of any information obtained in the course of employment," the Indiana Constitution, and the United States Constitution.

The court held:

Under our Shield Law, we hold that an anonymous person who comments on an already-published online story and whose comment was not used by the news organization in carrying out its newsgathering and reporting function cannot be considered "the source of any information procured or obtained in the course of the person's employment or representation of a newspaper" .... Under the United States Constitution, to strike a balance between protecting anonymous speech and preventing defamatory speech, we adopt a modified version of the Dendrite test, requiring the plaintiff to produce prima facie evidence of every element of his defamation claim that does not depend on the commenter's identity before the news organization is compelled to disclose that identity. With this test being called the most speech-protective standard that has been articulated and neither party advocating a different test, we adopt the modified version of the Dendrite test under the Indiana Constitution as well.