Montana Standard’s Unpersuasive Defense of Its Retroactive Change on Anonymous Commenting

Since I published yesterday’s discussion of the Montana Standard’s retroactive elimination of anonymous commenting on its web site, there have been three informative developments.  First, I was able to speak with the Standard’s editor, David McCumber, mostly off the record so that we could talk through some of the issues in a collegial mannner; second, McCumber submitted a comment on the story, which is now published; and third, Eugene Volokh looked at the situation and noticed an anomaly in the Standard’s Privacy Policy; here is his discussion of that aspect of the situation is here. 

Possible Liability for Violating Promised Privacy

Starting with the Privacy Policy first, I confess I did not look at it because I assumed that, like most companies, the Standard's document would be written in a way that maximizes flexibility.  If that were so, we would have the interesting question of how to evaluate an Internet operation's legal responsibilities when the fine print is at odds with the understandings created by language that users likely did see when they signed up for accounts – in this case, the statement on the user signup form assuring users that it is the screen name that will be displayed with their comments.

But not only does the Standard's Privacy Policy not contain the exclusion that one frequently sees for disclosure when, for example, the poster has engaged in abusive conduct, but there is a solid commitment that if the privacy policy loosens, the company will not use information acquired under the current terms in the new, looser way.  This policy creates the very real possibility that the Standard and its owner, Lee Enterprises, could be sued by users whose “real names” are disclosed (note the qualification in my previous post), at the very least for breach of contract, and perhaps, depending on the language of the UDAP statutes in the relevant states, for statutory damages, liquidated damages, and attorney fees.   I have to assume that the prospect of such litigation will be sufficient reason for the Standard to put its proposed change on hold while it rethinks its options.

Meeting McCumber's Concerns Without Losing the Benefits of Anonymity or Outing Past Posters

Turning to those options, I did not find McCumber’s response entirely persuasive.  I recognize that a small paper like his might not have the staffing levels needed to hire moderators as the New York Times uses; but solving the problem that he describes does not require a large commitment of time to moderation.  He identifies the problem this way: “the relatively few posters who consistently offer destructive and noxious comments.”   But it is relatively easy to deal with a few bad apples – you warn them when they step over the line, and then you ban them when they repeatedly ignore the warnings.  IP blocking and other techniques can be used to reinforce those warnings.   Eugene Volokh suggests other workarounds, and some of the comments to the post suggest that the technical community is starting to focus on the issue.  The Standard could benefit from crowdsourcing this problem.

Moreover, I think McCumber understates the cost of eliminating anonymous comments (past and future).   It is not just posters who are worried about employers' retaliation, or indeed posters worried about other forms of retaliation that might be illegal.  Although McCumber posits the impact of spiteful comments on people who are the subject of those comments, which may make them less willing to be the subject of news articles, it is equally true that everybody who makes comments may well be known to a large segment of the population that reads the comments.  Although that quality of being known can inhibit nastiness in comments, it can also inhibit the expression of honest but unpopular opinions, or honest but controversial opinions, or comments that implicitly reveal private facts about themselves. And commenters might well worry about how they will be judged by their neighbors, fellow churchgoers, and the like. 

For example, my Doe client Orthomom lived in a huge metropolitan area, but at the same time she was a member of a small and somewhat insular community  — the Orthodox Jews of the Five Towns Area of Long Island, New York.  She felt that she could not speak candidly about her community under her own name because she was worried about the social opprobrium that not only she but her husband (who might lose business within the community) and children (who attended religious schools) might face.  Yet I tended to think that her blogging about life in her community made a useful contribution to the marketplace of ideas (not that I always agreed with what she had to say!)  Her realities were a microcosm of the problems facing those who live in small towns when they consider how candid they want to be when commenting on a local newspaper's web site.  And I tend to think that the marketplace of ideas is better served by getting such opinions out into the open where they can be discussed and dissected.

But there is one respect in which McCumber's response somewhat understates his difficulties in addressing these issues.  When McCumber's comment tells us he is not “unwilling to configure our software” and that he was told by the “content-management software experts that such a configuration is impossible,” this is not something that he alone can fix by, for example, telling experts to figure it out or he will find others who can.  One thing he told me when we talked, and that he has authorized me to share, is that the content management system, and indeed the user signup system, are not specific to the Standard, but are supplied by Lee Enterprises, which runs a chain of roughly fifty daily newspapers as well as weeklies, advertisers and other publications, largely in the Midwest and West.  So this is a chain-wide problem. 

Moreover, looking at the list of markets served, its publications are all in small towns where, we can assume, the problems that McCumber identifies as reasons to worry about the impact of nasty comment sections on the willingness of ordinary people to cooperate with the reporting process might well be similar.   So, too, are the inhibiting effects of a real-name commenting  requirement.

Consequently, and considering the real danger of legal liability that it faces from a retroactive change, it might well be to the chain’s advantage to reach out to the technical community to see whether it can’t come up with better solutions that meet its editorial needs while staying within a budget they can afford.