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2/21/2012 6:34:00 PM
Indiana appeals court rules online commenters not protected news sources

Dan Carden, Times of Northwest Indiana

INDIANAPOLIS | The identities of anonymous commenters on newspaper websites are not protected under Indiana's journalist Shield Law, and newspapers may be compelled to disclose them under certain circumstances, the Indiana Court of Appeals ruled Tuesday.

In a 3-0 decision, the appeals court said protection for sources under the Shield Law, which exempts a newsperson from divulging a source even under court order, does not apply to online commenters because their comments are only posted after the newsgathering process is complete and a story published.

The Indianapolis Star was sued by Jeffrey Miller, former CEO of Junior Achievement of Central Indiana, to obtain the identity of "DownWithTheColts," who alleged in an April 6, 2010, online posting attached to a Star story about a Junior Achievement audit that Miller stole money from the business education group.

Miller intends to sue "DownWithTheColts" for defamation but cannot until the Star discloses his or her identity. The Star claimed "DownWithTheColts" is a protected source and does not have to provide Miller with the identity.

The court disagreed with the Star, saying if the online comment led to further reporting there would be justification for protecting that commenter as a source, but that didn't happen in this case.

"The Star merely provided a place for 'DownWithTheColts' to place his comment similar to if The Star had placed a bulletin board outside of its office building for anyone to tack an announcement," wrote Judge Nancy Vaidik, a Porter County native. "For this reason alone, we determine that the anonymous commenter was not a source as envisioned by our Shield Law."

In addition, the court said the Shield Law expects reporters and editors will weigh the credibility of news sources before deciding whether to disseminate their information to the public.

No one at The Star applied any editorial judgment to the comment from "DownWithTheColts," which further distinguishes it from a legitimate, protected news source, Vaidik said.

In its 33-page decision, the appeals court said it's necessary to balance the benefits of anonymous speech while permitting action against defamatory speech, which is not protected by the Constitution.

To that end, the court adopted a recommendation by The Times and other media companies and said alleged victims of anonymous defamatory speech who can show evidence of defamation that is not dependent on the commenter's identity can obtain a court order requiring a newspaper disclose the identity.

The appeals court ruling is eligible for further appeal to the Indiana Supreme Court.

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