Colorado case could affect online comment rights

Clara Hogan | Reporter's Privilege | Feature | June 7, 2011

A federal judge in Colorado is considering a case that could affect the developing law concerning rights of anonymous Internet posters.

U.S. District Judge Christine Arguello in Denver granted a stay on June 2 to protect Skybeam Inc., a local Internet service provider, from a subpoena requiring it to hand over identifying information about two IP addresses until after she reviews a magistrate order approving the subpoena.

Fashion company Façonnable USA, a clothing brand sold in high-end retail stores since the 1980s, is seeking information about one or more of Skybeam’s customers who allegedly posted critical comments on its Wikipedia pages. Façonnable said the posts are false and defamatory, but Skybeam attorneys argue the judge did not consider years of precedent on the First Amendment rights of anonymous posters in her decision.

Wikipedia allows users to edit and post information to its pages under a pseudonym. Façonnable sued for trade libel/commercial disparagement, and a violation of the Lanham Act and the Colorado Consumer Protection Act. The fashion company claimed the anonymous posts by Internet users caused “irreparable harm."

The Delaware-based company has been owned by the M1 Group, a Lebanese conglomerate, since 2007. The defendants in the case, listed under two separate IP addresses, allegedly posted that the M1 Group supports Hezbollah, a Shiite Islamist militia and political party in Lebanon designated by the U.S. State Department as a terrorist organization. The authors also told customers that purchasing from Façonnable is supporting a terrorist organization.

“A significant portion of purchasers and potential purchasers of Façonnable branded products are Internet users, and many of them use the Internet in connection with making purchasing decisions,” the lawsuit says. “Those purchasers could easily be exposed to the Defamatory Statements, especially if they are searching the Wikipedia site directly or conducting a search for information on Façonnable or M1 Group through a search engine such as Google.”

After the company removed the statements from Wikipedia, the anonymous users allegedly re-posted them to the Web page. The Wikipedia pages were then entirely removed.

Not satisfied with the removal of the information, Façonnable sued the anonymous posters, listed as John Does, in the U.S. District Court of Colorado, where the IP addresses are listed under Skybeam.

Skybeam declined to hand over its customers’ information without a subpoena. Therefore, in conjunction with its suit, Façonnable asked the magistrate judge to order the Internet provider to hand over the identifying information.

Magistrate Judge Boyd Boland approved the subpoena, but, in an order on May 24, he admitted to not being aware of “a substantial body of law in other jurisdictions addressing First Amendment concerns and the issuance of John Doe subpoenas like those requested here.” Despite this, he stuck with his ruling and denied Skybeam's motion to quash.

Paul Levy, an attorney with Public Citizen Litigation Group, represents Skybeam in seeking a review. He argues that Boland left out a decade of precedent that requires notice to be given to the anonymous poster and a plaintiff to present evidence of any wrongdoing. Instead, the judge allowed the subpoena on the significantly lower standard that the company merely claimed the comments were false and harmful, he said.

Levy said most courts follow the Dendrite rule, from Dendrite International v. Does 1-14, which sets forth guidelines for courts faced with requests to compel websites to reveal identities of anonymous Internet speakers. This balancing test, which includes five factors, weighs the defendant’s First Amendment right of anonymous free speech against the case presented by the plaintiffs.

Protecting anonymous poster rights is important to avoid a chilling effect of free speech on the internet, Levy added.

“We want to protect the developments of the law and citizens’ ability to comment on companies whose conduct they disapprove of," he said.

Arguello agreed to review the ruling while a stay is in place so that First Amendment rights are not violated.

“The Court finds that Skybeam has demonstrated that the balance of hardships tips decidedly in its favor,” her decision said. “If a stay is denied in error, Skybeam will be required to disclose the Does’ identities, which could harm the Does’ First Amendment right to speak anonymously.”