Out-Law News 1 min. read

Privacy policy clause is not justification for revealing anonymous poster's identity, US court rules


An anonymous web user who posted a comment under an online newspaper story cannot be un-masked, a US Court has ruled. It found that the person did not waive his rights to anonymity despite the contents of the site's privacy policy.

The privacy policy said that information provided by the user could be disclosed by third parties but the Court said that this was not enough justification for revealing his identity.

Its ruling said that the website user could not be stripped of his anonymity on the basis of two sentences buried in a privacy policy. "It cannot be said that the anonymous poster was aware he or she may be waiving the rights to free speech," said the ruling.

The US District Court for the Western District of Missouri Southern Division is hearing a dispute between two individuals. The local newspaper, the Springfield News-Leader, published online an article relating to some of the dispute. An anonymous commenter, 'bornandraisedhere', commented on the story.

One of the parties in the dispute, John D Sedersten, asked the court to compel the newspaper to release information which might help to identify 'bornandraisedhere'. The court refused, saying that the right to free speech contained in the first amendment of the US Constitution forbade it. The Court also ruled that it would be unfair to assume that 'bornandraisedhere' consented to the small part of the privacy policy that permitted the newspaper to reveal his identity.

"The Supreme Court has consistently held that 'an author's decision to remain anonymous … is an aspect of the freedom of speech protected by the First Amendment'," said Judge Gary A Fenner in his ruling. The Court said that speech related to politics was particularly strongly protected.

"Keeping the strict scrutiny of political speech restrictions in mind, the Court finds that this is not the exceptional case that warrants disclosure of an anonymous speaker's identity," Fenners's ruling said.

Sedersten said, though, that even if the identity of 'bornandraisedhere' was protected by the US Constitution, he had waived that protection by agreeing to the News-Leader's privacy policy. That policy said that information provided by a user can be used for commercial purposes.

"Nothing on the face of the privacy policy even hints a user may be waiving his or her constitutional right to anonymous free speech by posting comments or materials on the News-Leader's website," said the ruling.

"[Sedersten] relies upon two sentences in a two-page document ... it cannot be said that the anonymous poster was aware he or she may be waiving the right to free speech, let alone the significance of such waiver," it said.

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