The Outing of a Blogger: Is it Legal to Reveal a Blogger?

Filed as Features on March 29, 2009 12:21 pm

blog anonymous mask over word bloggerIn “The Outing of a Blogger: Social Transparency or Violation?” I started this short series on the outing of a popular Alaska personal blogger, Mudflats (aka AKMuckraker or AKM), unveiled by a state politician.

The question I want to tackle in this article is the issue of the legality of blogger anonymity and what protects bloggers and not. This is a huge topic, so I’m only going to scratch the surface.

In many countries, there are no laws protecting freedom of speech nor journalists or bloggers. There may be protections for journalists, but none for bloggers. In countries where you would expect there to be such laws…it’s amazing how few there are and how flexible those laws can be.

Does a blogger have the right to privacy and anonymity? What rights do others have to expose them and why?

Is It Legal to Out a Blogger?

The UK Guardian reported in 2007 on several cases since 2001 where judges ordered blog and website hosting services to disclose the names in defamation and libel suits.

The case, featuring the website owlstalk.co.uk, is the second within days to highlight the danger of assuming that the apparent cloak of anonymity gives users of internet forums and chatrooms carte blanche to say whatever they like.

…Exposing the identity of those who post damaging lies in cyberspace is a growth area for libel lawyers.

Dan Tench, of Olswang, the law firm representing Gentoo, said: “This case illustrates an increasingly important legal issue: proving who is responsible for the publication of anonymous material on the internet. This is likely to be a significant issue in defamation cases in the future.”

The article stated that while the courts ordered some websites and services to reveal the site owners, “abusive fans” were permitted to remain anonymous as, “Their right to maintain their anonymity and express themselves freely was outweighed by the directors’ entitlement to take action to protect their reputation…”

These decisions included the publishers of content as well as those who respond to the content via comments and forums. Discussions in chat rooms, instant messaging services, Twitter, and other online communications that are preserved and “discoverable” are also at risk of legal action if the content crosses the line. Unfortunately, that “line” is still being drawn in the sands of the Internet.

In 2007, Buzzblog reported on a local newspaper’s attempt to uncover a blogger highly critical of a local politician:

The Record’s editor, Peter Ellis, tells me that his paper was merely calling to account “a political group hiding behind the name of a fictitious person, which is what happened.”

Ellis stands by that decision, as he should, although he does regret using the video…

The article reported that the editor felt that the blogger was not acting on their own behalf as a person with an opinion published freely, but as a member of an organized political group blogging with the intention of defamation.

The reaction was similar to the firestorm around Mudflats. “Some in the blogosphere have reacted so vehemently in opposition to the newspaper’s attempted outing that you would think the Record had formed a posse and shot the lonely pamphleteer of yore.”

Buzzblog claimed they had the right to take action to expose the blogger.

They were correct. While there may be a long-held and cherished right to publish anonymously in this country, it isn’t any more absolute than other First Amendment rights and should never be confused with a right to remain anonymous. After all, there was never anything stopping the lonely pamphleteer’s neighbors from saying, “Hey, that looks a lot like farmer Ben’s handwriting.”

They say that because the blogger made himself a “person of public interest” that made him “fair game for being identified,” similar to someone who becomes a celebrity opening the door to paparazzi invasion of privacy.

In my world, there needs to be a better definition of “person of public interest” because anyone who blogs could meet that vague qualification. And what about the politician. Aren’t they a person of public interest, too?

Video Blogger Goes to Jail

In 2006, Machine-Gun-Keyboard reported on a video blogger jailed for refusing to reveal sources for video he captured during a anti-globalism protect in San Francisco in 2005. As a blogger and journalist, he believed he had a right to protect his sources. The grand jury found otherwise. When he refused to identify the protesters he filmed and turn over the video “on the basis of protection of confidentiality of his news sources,” he was sent to jail. The article explained:

There are no federal shield laws in the US protecting a journalist’s right to conceal sources, though California has a shield law. Most US courts will, on the basis of tradition, grant an exception to allow journalists and publishers to maintain the confidentiality of their sources. If the courts wish to press the point, journalists can be imprisoned, as was Judith Miller of the New York Times for her role in the leak of the identity of CIA agent Valerie Plame to the press. Wolf is being held in contempt on a federal grand jury investigation, so the California shield law does not apply. Also, there’s no specific legal definition of a “journalist” in the US, though any person who collects information for publication in the public interest is normally considered to be a journalist.

The video blogger, Josh Wolf, turned his blog into Freedomedia, now dedicated to filming and reporting on civil disobedience and protests. Held in jail for 226 days, considered as of then the longest imprisoned journalist in US history for failing to comply with a subpoena, he shares the stories of his jail time in his Prison Diaries and the details of the case in US v. Wolf. For his resistance and the media attention, he received the 2006 Society of Professional Journalists Freedom of Information Award as Journalist of the Year and the 2007 James Madison Award for Online Free Speech.

Wolf is covered by the laws in place to protect journalists, and not, but these don’t yet apply to bloggers, and that distinction is growing thinner every day.

Bloggers Win and Lose Their Day in Court

Model Liskula Cohen, long associated with Giorgio Armani and Versace products, sought a court order to force Google and Blogger.com to identify a blogger as part of a defamation suit and won, exposing the blogger.

An Israeli court ordered Google to reveal the identity of a blogger who accused a Shaarei Tikva commitee member and politician of illegal acts, which they complied with. TechDirt’s response to this issue sided on both sides, but also brought up the issue of the confusion over libel and defamation.

There’s nothing wrong with a court requiring a service provider to cough up identifying information on someone who has broken the law — but it gets into very tricky territory when it comes to things like libel. We recently covered a number of similar cases in the UK where the results were the same — but a case in the US had the judge determine that the anonymous speech was protected and the person shouldn’t be revealed. It seems likely that we’re only going to see more of these cases over time — and questions about jurisdiction are only going to make them more confusing. What if the blogger in this case actually resides in the US, for example?

In TechDirt’s article, “The Ongoing Battle Between Anonymity And Libel Online,” they added:

…libel is increasingly a funny sort of crime in this world where everyone’s a publisher and everyone has an opinion. Accusing someone of libel in court can often backfire, as it only calls that much more attention to the actions that led to the original claims. It seems that it’s often better to simply respond to the false claims with proof that they’re not true, and then leave people to make their own decisions.

In the issue of Mudflats being exposed by state senator Mike Doogan, the issue of legality and responsibility are summed up by The Wandering Mind:

So I guess this is what elected officials do in Alaska, run down vindictive personal vendettas against anyone who opposes them. How Boss Tweed of him. AKM has only ever posted personal opinion and facts. But it seems this is a bad thing to do, in Mike Doogan’s eyes. He didn’t sue for slander, or libel, or defamation of character, or anything else. No, this was just to try to hurt AKM because apparently that’s the kind of guy he is. Forget freedom of the press, forget freedom of expression. Many, if not most, of the bloggers I’ve read are anonymous, and for good reason. Apart from cyber-stalking, there is real-world stalking. Let’s hope Rep. Doogan is still above anything like that, but frankly any integrity he may have had is demolished in my eyes.

They also bring up a very important point. While Mike Doogan thinks he was acting in the best interests of his constituents by revealing the identity behind Mudflats, many supporters of Mudflats think that Mike Doogan might have broken some laws, though they haven’t found any yet. Many are investigating legal action possibilities, which could result in some core changes to the laws protecting anonymous bloggers and bloggers in general, if pursued.

What are the legal ramifications of outing someone? Is that an invasion of privacy? Defamation? Libel? The laws have long been in place to protect anonymous sources for journalists in some countries, but what about the anonymous blogger? What are their rights? What protections do they get under the laws?

In the next article about blogging anonymously and the consequences of being outed, I want to share with you the courage and determination many anonymous bloggers have for keeping their identity secret, and how they shared that courage with others, including Mudflats.

Tags: , , , , , , , , , , , , , , ,

This post was written by

You can visit the for a short bio, more posts, and other information about the author.


Submissions & Subscriptions

Submit the post to Reddit, StumbleUpon, Digg or Del.icio.us.

Did you like it? Then subscribe to our RSS feed!



  1. By weez posted on March 29, 2009 at 1:47 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Hi Lorelle, thanks for citing and linking to mgk.

    I the specific case of Doogie v. AKM, if she cares to press the point, she could do Doogan for a violation of her (1st Amend) rights to anon speech, primarily because Doog is part of the govt. She probably would not have as strong a recourse against a private citizen who did the same thing. If Dungheap had been a smart cookie (obviously ain’t), he’d have frobbed up a blogspot or other freeb blogsite and did the outing that way, but nooooooo….. this clown has left his pink bits legally exposed for some whacking civil suit goodness.

    Thanks for the incisive and extensively researched bit.

    Reply

  2. By weez posted on March 29, 2009 at 3:20 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    yanno, as I think about this, it may be insignificant that Dungo is a pollie. It’s wholly possible for a civilian to violate the civil rights of another, with criminal and civil avenues of redress available to a victim. However, the fact that the alleged infringer in this case is a public officeholder opens other avenues of prosecution eg. abuse of power by a public official, should such an offence be defined in AK law.

    Reply

  3. By Tumblemoose posted on March 29, 2009 at 3:21 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Sorry, no sympathy for the blogger here. Anytime you put anything in this very public forum called the internet, you take your chances. There have been numerous instances of this on Facebook and Twitter. And while these folks didn’t post in an anonymous nature, the similarities are still clear.

    If this blogger really felt so strong about their opinions, how about coming clean with a name? And don’t give me that rubbish about stalking. That’s a thin veil.

    Understand that I’m no fan of Doogan. He is one of the leftest leaning socialists that ever came down the pike. His column in the Anchorage Daily News was one of the prime reasons I stopped even looking at that socialist rag.

    Signed,

    NOT anonymous, George

    Reply

  4. By Gerbeel Haamster posted on April 2, 2009 at 8:36 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    I’d like to note that most “bloggers” tend to think they have opinions that someone should pay attention to. Some bloggers even make claims to priviledged information. That’s where the problems start.

    Here is part of the original post from Mudflats on the “outing”; a reference to Mudflats’ start in the blogging biz:

    ” …But I knew some things about her (Gov. Sarah Palin), and her policies and positions that others might not be able to find out so easily. I decided to write my opinion….”

    I think the question should hinge on whether a private citizen claims to “know” things that “others” may not have access to, intimating the access is special and privileged.

    This is not a journalist protecting a “source”.

    Blogging is not “reporting”, no matter how many Bloggers pretend (or want to pretend) they are reporters.

    When a Blogger (as so many of us do) crosses the line from opinion to stating supposed fact based on claims of privileged information, that Blogger has lost any expectation of legal protection of their identity.

    IMNSHO, if you claim special access, privilege and expertise not available to the general public, expect to get outed.

    Reply

  5. By Wendy Bottoms posted on April 3, 2009 at 7:07 am
    Want an avatar? Get a gravatar! • You can link to this comment

    In response to Tumblemoose, I would say Alan Berg, Gary Webb, Maria Politkovskaya were all paid journalists and personalities and were killed for their opinions. How is a citizen supposed to defend against that if the politicians they are criticizing, as is their right, can use the government to single them out for harassment and persecution? Anonymous pamphlets criticizing the King got us fired up to be a free country (before the 2000 Bush Supreme Court selection, which canceled democracy). Should Franklin, Paine, Hamilton et al have just shut their mouths or made themselves available to the Tories for judgement by the King? That seems to be the Doogan/GOP/wingnut approach. How about a free country approach where anonymity and privacy are respected?

    Reply

  6. By DrChill posted on April 3, 2009 at 7:26 am
    Want an avatar? Get a gravatar! • You can link to this comment

    The laws that were violated were:
    The state ethics law that forbids legislators from using state resources for personal partisan or non-legislative purposes, and
    The Alaska state constitution that protects privacy
    and the US Constitution that protects anonymous speech.
    Anonymity is recognized as a shield against retaliation for unpopular speech.
    Outing a blogger is like forcibly breaking the front door lock, and disabling the alarm.

    And as for the arguments that you “Take your chances” or
    You lose privacy as soon as you become very popular…
    try applying that to a pretty woman’s woman’s right to appear in public without being accosted.

    Blogs are diaries that you get the privilege to look at.
    Don’t abuse the privilege by imposing your own values on the author.
    And like other rights, as long as you’re not breaking the law or violating someone else’s rights, you have the right to do as you please.

    Reply

  7. By Wendy Bottoms posted on April 3, 2009 at 11:38 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Gerbeel Hamster does not make the laws of this country or the rules for our social conduct. By what outlandish authority does a gerbeel or a Doogan decide for other people when it is appropriate to control other peoples’ lives? Who says they are not journalists if they are doing everything a journalist does but get paid by a newspaper and taking bribes from politicians for favorable coverage? Because a person has special knowledge they should be opened up for retribution by angry mobs? Why, to satisfy the egos of their opponents or people in the majority? Sounds like the opinion of a tyrant to me. The courts certainly don’t agree with this position. I don’t think Gerbeel or Doogan would agree either if they ever had done anything momentous enough to attract real negative attention.

    Reply

  8. By Miroslav Glavic posted on April 4, 2009 at 12:53 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    I would like to state to the poster above about the american 1st. amendment…freedom of speech, not freedom on anonymous speech.

    All rights need to have limits. Hate Speech and racism are where freedom of speech and freedom of expression end (both are technically not the same).

    Do I have a right to say that Lorelle as a woman should stay in the kitchen and do her “duties” as a woman? I grew up in a culture where the father earned the bacon and the mother took care of the house and children, I can express how I might believe on that.

    Can I say: Lorelle being a should not use the computer because all should never touch computers…………….this is crossing the line.

    If I accuse Lorelle of copying my work….Can I make a post on my site about it without posting proof? no.

    In North America and western Europe where we are democratic…the burden of proof is on the accusser to proof guilt.

    In the Lorelle stealing my content example: I made a post about Lorelle copying my content without permission, I would have to provide proof of her guilt, not her provide proof of her innocence.

    So if a blogger accusses a politician or an actor or whomever of him/her saying/doing something, that blogger needs to provide proof. Also the accused has the right to face his accuser.

    If any of my writers accuse a person of something, that person comes to me with a lawsuit, I will go to my writer and demand proof of the accusation’s validity.

    There is no such thing as privacy on the internet. With Google and Woopra Analytics, I know where you are coming from, your browser, resolution, language, o/s, and a lot more.

    If you want privacy, put your left thumb in your mouth and suck it, then put your right thumb up your ass. and go to bed,

    Reply

  9. By DrChill posted on April 4, 2009 at 1:09 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Miroslav Glavic posted on April 4, 2009 at 12:53 pm -
    You should learn about American freedoms.
    High courts have upheld private-anonymous speech as a right. You may pass out leaflets anonymously. You may speak on a pay phone anonymously. You may carry protest signs anonymously. I am sure there will be case law soon that explicitly protect bloggers.

    We all know the limits of free speech. We can not maliciously hurt others or deny them their safety and their rights, nor can we engage in sedition or libel.

    If a blogger libels another then by all means get a court order and make them answer to their crime. But there’s no reason to violate privacy otherwise.

    In practice there are lots of people who can hack computers and pick door locks. Doesn’t make it right.
    Yes I want privacy. I’m an American and I’ll fight for it if I have to.
    And I don’t need to use juvenile insults to make my point.

    Reply

  10. By weez posted on April 4, 2009 at 1:28 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Anoymous speech is a protected right in the US, Miroslav. Outing this blogger was a violation of her civil rights- and she has legal recourse.

    Next question?

    Reply

  11. By timethief posted on April 5, 2009 at 5:31 am
    Want an avatar? Get a gravatar! • You can link to this comment

    Thank you for the research and writing that went into this article which draws attention to the fact that anonymous speech in the USA is supposedly a protected right. I concur that we bloggers need clarity in regards to what the rights of anonymous bloggers are and what protections they get under the law.

    As it stands, IMHO the outing of this blogger was a violation of her civil rights. I shall be watching to see what comes next.

    Reply

  12. By weez posted on April 5, 2009 at 6:28 am
    Want an avatar? Get a gravatar! • You can link to this comment

    [...] anonymous speech in the USA is supposedly a protected right.

    Not ‘supposedly’- really. See Talley v. California, 362 U.S. 60 (1960)

    Over petitioner’s protest that it invaded his freedom of speech and press in violation of the Fourteenth and First Amendments to the Federal Constitution, he was convicted of violating a city ordinance which forbade distribution, in any place under any circumstances, of any handbill which did not have printed thereon the name and address of the person who prepared, distributed or sponsored it.

    Held: the ordinance is void on its face, and the conviction is reversed. Lovell v. Griffin, 303 U. S. 444. Pp. 362 U. S. 60-66.

    172 Cal.App.2d Supp. 797, 332 P.2d 447, reversed.

    Reply

  13. By Larry Bodine posted on April 6, 2009 at 10:23 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Tumblemoose is right: The First Amendment does not protect anonymous bloggers. There is no blogger right to anonymity or right to snipe anonymously.

    As a blogger and former 15-year journalist, I always put my name on my articles. When I have something to say, I always put my name on it. Anonymous bloggers are craven cowards.

    No blogger has the right to libel and defame people without taking responsibility. And they have no right to privacy when the make thier posts PUBLIC. If the post is public, the blogger’s name should be too.

    Larry Bodine, Esq.

    Reply

  14. By weez posted on April 7, 2009 at 1:34 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Larry, you appear unable to read case law. See immediately preceding post.

    The 1st but 14th Amendments make anonymous speech a constitutional right, whether YOU use it or not.

    Reply

  15. By DrChill posted on April 7, 2009 at 1:43 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    >> No blogger has the right to libel and defame people without taking responsibility.
    Well yeah. But this has nothing to do with that.

    And your journalistic experience is irrelivant, except journalists think bloggers are kind like them. No they are not.
    People pay a buck to get a professional level of fact checking,

    Blogs are diarys that people share. They are private thoughts that are shared.
    If you’d done some fact checking you’d know that.
    Sorry for the anonymous sniping, but I’m right.

    Reply

  16. By calilbcc posted on May 16, 2009 at 12:52 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Dateline NBC did an expose on telepsychic hotlines, the businesses in which customers call a psychic and, for a fee, get a “reading” over the telephone. A Dateline employee, posing as a psychic, got a job with one company and went to work wearing hidden video and audio equipment. She taped conversations of employees joking about how stupid their customers were and how the psychics simply read prompts from cue cards when offering their “readings.” Several employees’ identities were revealed when the Dateline episode aired, and the audio and video recordings were also aired.

    Dateline was sued in civil court for violating the employees’ privacy.

    Where in the Constitution is the right to privacy? What do you guys think the ruling was in this case?

    i was just very confused where the boundaries are set although i did some research i could only find that if its political speech it is strongly protected and other unrelated privacys are protected like search and seizure and of course 1st amenment but nothing dealing with peoples idenity related to revealing some sort of facts…….

    Reply

  17. By weez posted on May 16, 2009 at 1:03 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    There is no explicit right to privacy in the US Constitution. However, there is a right to privacy established through the implicit meanings of some of the articles and amendments, notably the 5th Amendment. Privacy rights have also been established through case law. See Griswold v. Connecticut and Roe v. Wade.

    Reply

  18. By legal posted on July 5, 2009 at 11:47 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    The legal privacy question raised in this article is akin to taking photos of someone in public and posting them on the internet. Now is this legal? I declare it may be. I notice the airport now has a machine that looks trough your clothes. This is quite an invasion. Especially since current metal detectors work. The answer to your question may possibly be found at http://www.isitlegalto.com.

    Reply

    Your words are your own, so be nice and helpful if you can. If this is the first time you're posting a comment, it might go into moderation. Don't worry, it's not lost, so there's no need to repost it! We accept clean XHTML in comments, but don't overdo it please.

    Current ye@r *