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America Online must reveal subscriber's identity

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  1. Libel and Privacy

    NMU         VIRGINIA         Libel         Nov 27, 2002    

America Online must reveal subscriber’s identity

  • The state Supreme Court upheld a circuit court decision ruling that AOL must produce the identity of one of its subscriber sought by a foreign electronics company.

The Virginia Supreme Court ruled Nov. 1 that America Online, a Dulles-based Internet service provider, must divulge the identity of one of its 35 million subscribers who is charged with libel and unfair business practices by a Hong Kong-based electronics company.

“This is a free speech issue and that’s why we’re pursuing it with the Virginia Supreme Court,” AOL spokesperson Nicholas Graham said, noting that AOL has asked the court to reconsider its opinion. “We believe very strongly [that] our members have protected free speech rights on an online media.”

An AOL subscriber using the screen name “scovey2” is a target of Nam Tai Electronics, Inc., a Hong Kong electronics design and manufacturing service. The company claims that scovey2 is one of number of unknown defendants involved in a concerted effort to discourage investors from holding or purchasing Nam Tai stock, the decision said.

Scovey2 had posted to a message board maintained by California-based Yahoo! Inc. One message cited in the court’s decision was posted Jan. 8, 2001: “Sinking is not a province in China but an observation of this company’s stock market performance. This low tech crap that they produce is in an extremely competitive and low profitability industry. I see see-sawing of the stock with no real direction.”

Nam Tai went to the Los Angeles Superior Court in January 2001, where Yahoo is located, to seek compensatory and punitive monetary damages as well as injunctive relief for libel, trade libel and unfair business practices from 51 unknown defendants and scovey2, the decision said.

After learning that scovey2 was an AOL member, Nam Tai obtained permission for out-of-state discovery. In March, the circuit trial court in Virginia — where AOL is located — issued a subpoena ordering AOL to produce the identity of scovey2.

AOL’s efforts to quash the subpoena were unsuccessful. The trial court concluded in a June 22, 2001 order that “the First Amendment privacy concerns of the anonymous defendant are outweighed by the State of California’s interest in the ability of its litigants to conduct out-of-state discovery.” Also, an Aug. 7, 2001 opinion from the Virginia trial court’s Chief Judge Thomas D. Horne stated that the First Amendment concerns were not applicable to Nam Tai’s unfair business practice claims.

The state supreme court agreed. First Amendment issues ultimately are to be determined in California courts, it said.

AOL asked the court to reconsider within 10 days of the decision’s release, according to Graham. While AOL does not expect to hear from the court for several months, the company could appeal to the U.S. Supreme Court if the Virginia Supreme Court denies its request.

Although AOL releases personal information about its members, either by subpoena in a criminal investigation or subpoenaed with “just cause and legal merit,” Graham said this case is being fought purely on First Amendment grounds.

“The information was not being supplied to them because we felt that the subscriber in question had a right to free speech on the service,” Graham said. “We were going to court in order to ensure that our members had a right to free speech and right to privacy when [expressing] certain opinions.”

(America Online, Inc. v. Nam Tai Electronics, Inc.; Media counsel: Patrick Carome, Wilmer Cutler & Pickering, Washington, D.C.) AU

© 2002 The Reporters Committee for Freedom of the Press

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