Date: Fri, 16 Dec 2005 17:32:21 -0500 (EST)

From: Jennifer Chandler

Subject: Defamation of a pseudonym?

I am thinking about the possible tort liability risks that are involved in running an online reputation system such as eBay's Feedback Forum.

(This Forum allows parties to provide a positive, negative or neutral "mark" along with a text comment about each other after a transaction. This information is then useful for others to assess whether to transact with these parties.)

I have thought of a number of relevant torts, but one question that I am wondering about is the following:

Can there be a defamatory comment about a person who is identified only by a pseudonym?

One of the requirements of defamation is a reference to the plaintiff. This can be done directly or obliquely as long as the reference is reasonably understandable as pertaining to the plaintiff. However, if the pseudonym is not realistically traceable to the plaintiff, is the plaintiff defamed?

The court in Grace v. eBay 120 Cal. App. 4th 984 (2004) (which dealt with a defamatory comment about an eBay user in the Feedback) didn't worry about this because there was a valid and effective disclaimer clause (or because I am wrong and there is no issue here).

I think that there ought to be potential liability for defamation when one damages the reputation associated with a pseudonym, even though there is no reference that can be tied to the real-world plaintiff.

A name and a pseudonym are simply two different labels used to refer to a real person. Many people are increasingly engaging in social and economic behaviour of great personal importance online where the construction of identity around pseudonyms is common, and reputation within an online community may be of sufficient value to warrant protection. In eBay, users invest a fair amount of energy in building up reputation and it is perceived to have great economic value.

On the other hand, a name is (a) harder to discard than a pseudonym, (b) probably known by more people, (c) more obviously linked to the real-world physical person, and (d) linked to more of a person's interests (dignitary, social, economic, etc.) than a pseudonym. Maybe a pseudonym is less deserving of protection?

Does anyone know of any cases in which a person is defamed by way of reference to a pseudonym? Perhaps an analogy exists to scathing personal attacks on anonymous authors?

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