> A prominent cancer scientist, unhappy with the attention his research papers have received on PubPeer, is suing some of our anonymous commenters for defamation
On the other hand, should anonymous commenters have the balance of power: in other words, say whatever they want with impunity, even if it actually is defamatory?
(Not saying that is the case in this situation, but in general).
The problem is that defamation is a legal concept, which can only be tried legally. So for instance, whereas a site can rigorously enforce rules which say that all comments are directed at the research material, and not at persons, and have a factual basis in that material, those measures cannot take away the right of someone, who feels they have been defamed, to take the matter to court (where they will almost certainly lose, which is neither here nor there).
You can't just create a site and declare it above the law, so to speak.
The only way to protect the identities of the anonymous is for the site to take responsibility for the statements it publishes: to assert that the anonymous statements are subject to rigorous standards of review, and when published, they in fact reflect the views of PubPeer, and PubPeer alone, and not of any anonymous persons (who do not publish any statements, but act only as sources of information).
Then if someone feels they have been the target of defamation, the defendant shall be PubPeer.
As is always the case, the First Amendment does not give universal and blanket permission. There is are multiple tensions. The appeals court in Dendrite v. Doe guidelines for this matter are:
> (1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity."
In case of defamation, there's already a pretty high barrier for prima facie cause of action, and relatively broad protection for anonymous speech.
There's also little special about online communications. Anonymous speech, and the difficulties in balancing the different factors, have existed since before the founding of the country, when anonymous pamphlets like 'Common Sense' were used to press the call for independence.
Regarding "the site [must] take responsibility for the statements it publishes", this is wrong. Otherwise HN must be responsible for everything posted here, and we would have no HN. The relevant law is Section 230 of the Communications Decency Act of 1996, which grants pretty broad immunity to service providers. See http://en.wikipedia.org/wiki/Section_230_of_the_Communicatio... .
So: 1) it's well-established that anonymous commenters cannot say whatever with impunity, 2) defamation in this case is little different than the many previous cases on the topic, 3) no one seriously believes you can create a site and declare it above the law (assuming no jurisdiction problems), 4) existing case law is on the side of PubPeer, and 5) CDA gives PubPeer the ability to host anonymous comments without automatically being the target of a defamation suit.
This situation is reminiscent of websites hosting copyrighted material posted by anonymous users. Does the relevant law (DMCA, I think) say anything about defamation? A reasonable compromise might be that websites are held harmless so long as they respond to official defamation complaints in some prescribed manner. (Of course, this might not work as well because defamation is significantly less clear-cut than copyright violations, which already has plenty of cases of over-reach due to disputes over fair use, etc.)
DMCA is for copyright infringement, not defamation. That's not to say it doesn't get abused in all sorts of "we want you to take X down" scenarios, however.
For safe harbor here, you'd be looking to the CDA, I believe. In that case, what matters is the level of editorial control you exercise over the site. The complaint alleges that they review every comment before posting, which if true, would seem to be a problem for them. My understanding of the CDA is that, somewhat perversely, you're better off having low standards than high ones with respect to user-submitted content.
That aside, the above is a layman's understanding of the relevant law, not legal advice. If you're ever in a situation where this information is important, please discuss it with a lawyer.
On the other hand, should anonymous commenters have the balance of power: in other words, say whatever they want with impunity, even if it actually is defamatory?
(Not saying that is the case in this situation, but in general).
The problem is that defamation is a legal concept, which can only be tried legally. So for instance, whereas a site can rigorously enforce rules which say that all comments are directed at the research material, and not at persons, and have a factual basis in that material, those measures cannot take away the right of someone, who feels they have been defamed, to take the matter to court (where they will almost certainly lose, which is neither here nor there).
You can't just create a site and declare it above the law, so to speak.
The only way to protect the identities of the anonymous is for the site to take responsibility for the statements it publishes: to assert that the anonymous statements are subject to rigorous standards of review, and when published, they in fact reflect the views of PubPeer, and PubPeer alone, and not of any anonymous persons (who do not publish any statements, but act only as sources of information).
Then if someone feels they have been the target of defamation, the defendant shall be PubPeer.