On Nov. 12, 2015, The Montana Standard published an online editorial about forthcoming changes to its online commenting policy. This would seem trivial outside of the readership for this newspaper from the fifth largest city in the 44th most populated U.S. state.  But beginning in late NovemberThe Montana Standard’s plans for handling online comments gained quite a bit of attention.

The reason was hardly about The Montana Standard ending the ability of readers to comment using screen names, but rather the fact that the Butte-based newspaper’s new policy will be applied retroactively.

According to the editorial, as of January 1, all past comments on http://mtstandard.com “will be reattributed to the authors’ real names rather than usernames.”  To avoid being unmasked, commenters (who are being notified in print, online and – when possible – via email) must send comment removal requests to comments@mtstandard.com by December 26.

The basis for the policy change is that The Montana Standard staff has “encountered consistent difficulty with posts that exceed the bounds of civil discourse – as have many sites where comments from anonymous posts are allowed.”  Also according to the editorial, the publication has “heard from many readers that abusive comments have discouraged them from participation in online discussions.”

Examining the new policy

Among major free speech advocates, news of this policy change can be best characterized as “stunning.”  It is one thing for an online news publication to require commenters to post using their real names.  After all, many (if not most) news outlets now require readers to register through their Facebook accounts to publish comments.

But it is another thing for anonymous/pseudonymous commenters to be retroactively unmasked and exposed.  

David McCumber, The Montana Standard‘s editor, told both Paul Levy and Eugene Volokh that he “extensively investigated” the possibility of re-configuring the software for http://mtstandard.com/ to avoid this retroactive unmasking of its past commenters.  Unfortunately, McCumber said, he had been told that it was not possible based on the configuration of the software (which is controlled by its parent company).

According to Levy in his initial blog post, many past commenters might never see the notices, while “some of the commenters may have made comments that place their economic or even physical security at risk from the individuals or companies that they criticized in online comments.”

While these security risks would apply to a small number of people, they are not illegitimate, especially given that the commenters would not have undertaken them had they known their identities might later be revealed essentially without their consent.

Moreover, this presumably conflicts with the user agreement that the commenters would have consented to by commenting on articles on the website.  (According to Levy, having read The Montana Standard’s Privacy Policy, the publication and its parent company have exposed themselves to potential litigation).

Whether the policy change seems fair or not, there is a false presumption by many on the internet that they are invincible when posting anonymously or pseudonymously.  We see this with many of our internet defamation cases where people have defamed clients but did not take into account the ability to unmask their identities — even when using aliases — most notably through the subpoena process.

Nonetheless, The Montana Standard is still going forward with its policy change, which has and will continue to upset many (mainly those very vocal people who tend to frequent comments sections).

Tackling challenges of online comments

This new policy looks imperfect and will continue to irk many (in particular, those vocal individuals who regular comment on online articles).  However, The Montana Standard is far from the first news outlet or online publication to take a stand against the oft-vile comments sections.  In fact, according to an Oct. 2015 WIRED article, Bloomberg, The Verge, The Daily Beast and Motherboard have each disabled comments altogether this year.

“[A]s online audiences have grown, the pain of moderating conversations on the web has grown, too,” Klint Finley wrote, adding that much of the best discourse relating to an article is now happening on social media.

As noted, many publications have switched to Facebook comments in recent years, essentially requiring people to provide their real names (and profile pictures).  In 2011, for example, The Cincinnati Enquirer made this transition.

“[O]ur aim is not to shut out participants from the conversation, but rather to provide a welcoming environment that encourages high-quality and relevant contributions,” said then-editor Carolyn Washburn.  “By holding commenters accountable for their actions through Facebook, the hope is that this will help keep the conversation interesting and stimulating for the rest of us.”

According to a 2011 Poynter article (updated in 2014), news organizations that had switched to Facebook for online comments stated they were “seeing a higher quality of discussion.”

“Trolls don’t like their friends to know that they’re trolls,” Jimmy Orr, online managing editor of the Los Angeles Times, told Poynter. “By using Facebook, it has made a difference.”

Moreover, according to a 2013 TechCrunch article, a recent study had found that “Facebook users are about twice as civil as the anonymous trolling netizens that comb the badlands of The Washington Post‘s comment section.”  However, switching to Facebook comments is not a perfect solution either.

Certainly, public discourse is generally a good thing.  But moderating online comments has become quite a challenge for publications, forced to weigh the risk of chilling speech on the one hand, and being too  “laissez faire” and losing potential insightful commenters who are turned off by certain particularly vocal commenters.

Although ridiculed by many online, The Montana Standard is simply rolling out what they hope is a solution to an ongoing problem.  As 2016 approaches, we will keep an eye out to see if anything changes with The Montana Standard’s new policy and if they, indeed, follow through with their original plans.

Defamation in online comments

We would be remiss if we did not mention defamation in this post, though the vast majority of online comments are opinion-based or would be viewed as opinion by a judge.  Even certain vile speech in a comments section is likely to be considered protected speech.

However, any comments that are false and defamatory would not be protected speech, giving rise to defamation claims just like false and defamatory content published elsewhere online, such as on Ripoff Report, Yelp, or a blog established solely to disparage a party.

Similar to other forms of online defamation, if a news publication (or parent company) is unwilling to remove a defamatory online comment – noting that one can start by reporting the comment to the website – the target of the defamation can work with counsel to obtain a court order mandating removal of the comment.  News publications are likely to remove defamatory comments in response to such an order.

If a commenter’s identity is known, it is possible to bring the initial complaint against them (and ultimately have them sign an agreed order).  In the case of the defaming party using a screen name (or even a real name but with no known contact information), the defamed party can subpoena the publication for identifying and/or contact information and pursue the poster upon confirming his or her identity.