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Through accusations of defamation, companies are starting to unmask anonymous online critics

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From the Winter 2001 issue of The News Media & The Law, page 35.

From the Winter 2001 issue of The News Media & The Law, page 35.

By Dan Bischof

Thinking they are safe to criticize, reveal fraud, or simply fire potshots at their employers or public corporations, fed-up employees and investors have cloaked themselves in the veil of Internet anonymity to comment about corporations, management, and their jobs.

Safe? Think again. From coast to coast, courts are forcing Internet service providers and the hosts of message boards and chat rooms to reveal the true identities of users in defamation suits, usually with no requirement that the underlying defamation case be meritorious.

In Pennsylvania, a Pittsburgh trial judge ruled on Nov. 15 that the identity of an anonymous Internet author would be protected from third parties, but not the plaintiff, who was a public official.

In Florida, Web portals Yahoo! and America Online were forced to disclose the names of several anonymous message board participants accused of making libelous statements, a state court of appeals ruled on Oct. 16.

In Virginia, a trial judge approved a $675,000 jury verdict in December against a Nashville, Tenn., pathologist who posted messages about a Virginia urologist under the Internet user name “fbiinformant.”

In California, the U.S. Court of Appeals in San Francisco (9th Cir.) ruled in January that entering a security-protected Web site under false pretenses — such as by using another user’s identification — could be considered illegal interception of information on the site, punishable under the Federal Wiretap Act and the Stored Communication Act.

These are just a few of hundreds of online anonymity cases across the country, University of Florida law professor Lyrissa Lidsky said. Lidsky, who represented the defendants in the Florida case, published a law review article about the issue in February 2000. When she began looking at the issue a couple of years ago there were only a handful of cases, but now there are more than one hundred.

“It’s becoming a common tactic used by corporations and their CEOs to sue for defamation anytime they come in for harsh criticism on the financial message boards,” she said. “Some of them are valid defamation actions, no doubt about it, but a lot of them appear to be designed solely for the purpose of intimidating their critics into silence and that’s what makes them so dangerous.”

Plaintiff companies call them “cybersmear” cases and claim that false and malicious statements on the Internet can send stock prices into an unwarranted free fall.

Privacy groups call them “John Doe” cases and contend that many of the lawsuits are filed solely to discover the identity of the speaker and punish him through means other than the court system, such as terminating his employment.

Moreover, free speech advocates claim, companies violate civil procedure rules by using subpoenas soon after the lawsuit commences. When a lawsuit is filed and before discovery is to proceed, a copy of the complaint must be filed upon the defendants. Where the identification of the defendants is unknown — as in these John Doe cases — the plaintiff has only two options: go to court and get special permission to subpoena before service, or serve the defendant by publication, such as by posting service on the message board. This procedure is not being followed, they say.

“When you file a lawsuit, you are not allowed to conduct discovery until you have first served the lawsuit on the defendant so that the defendant knows what is going on, and it’s not just the fox guarding the henhouse with the plaintiff going around willy-nilly doing whatever he wants with all this judicial power,” said Megan Gray, an attorney for Baker & Hostetler in Los Angeles who has been involved in dozens of John Doe cases.

“This is what they are required to do. This is not even a ‘should.’ This is a rule of law,” Gray said.

The result of the loss of anonymity, free speech advocates contend, is a loss of a valuable and constitutionally protected speech.

“The guarantee of anonymity coupled with the ability of citizens to become publishers (on the Internet) means that a lot more ordinary people can now participate in public discussion and debate,” Lidsky said. “And not only participate, but make meaningful contributions to public discussion and debate.”

In large part, anonymous speech is losing; victories for anonymity have been few. But the tide may be turning.

In the Pittsburgh case, Allegheny County Common Pleas Court Judge R. Stanton Wettick Jr. ruled that the plaintiff was not entitled to know the defendant’s identity without a preliminary showing that the case had merit. The court ruled that the First Amendment protects anonymity for political speech that is not actionably false. The court cited examples of when anonymous speech has benefitted society, including employee recruitment for a union and a teacher’s exposing of a school system’s faults.

“It is clear that the availability to public officials of state libel causes of action will have an impact on anonymous Internet criticism of public officials made in good faith,” Wettick wrote.

However, the plaintiff demonstrated the merit of the case to Wettick and the judge released the name of John Doe.

“John Doe is still every bit as afraid of (suffering retribution) as ever,” said Ronald Barber, a Pittsburgh attorney who assisted in representing the person. “Protecting this from the public at large is not what this case is about. Protecting an anonymous critic of government from the government is what this is all about.”

In December, a New Jersey judge gave anonymous defendants perhaps their biggest victory by holding that even sufficiently defamatory messages posted to a Yahoo! message board did not warrant recovery because the statements did not harm the company.

Dendrite International alleged that four anonymous message board posters made false statements, violated employment agreements and published secret information. The state court first required Dendrite to post a notice on the message board where the objectionable material was first published, the sort of civil procedure measure that speech advocates claim is required.

At a hearing to determine whether the Morristown, N.J., company could subpoena the web service to find the users’ identities, Judge Kenneth C. MacKenzie made the preliminary ruling that the online postings constituted published, defamatory statements, and at least two were sufficiently false. However, the judge ruled that the company failed to demonstrate that the posted messages had any effect on the stock price, and as a result, Dendrite did not suffer any harm. Without this critical element of a defamation claim, the company had no recourse.

“Despite the fact that Plaintiff is entitled to every reasonable inference of fact in this analysis of whether a case against John Doe No. 3 could survive dismissal,” MacKenzie wrote, “the Court will not take the leap to linking messages posted on an Internet message board regarding individual opinions, albeit incorrect opinions, to a decrease in stock prices without something more concrete.”

In both the Pennsylvania and New Jersey cases, the courts, despite reaching differing conclusions, relied on the same 1999 federal district court decision from California. The case, Columbia Ins. Co. v. Seescandy.com, stands for the proposition that before a plaintiff can discover the identity of an anonymous libel defendant, the person who sues must have a meritorious claim that can at least survive a motion to dismiss. If the statement is not actionable, the court will not allow discovery of the identity.

“People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one’s mind without the burden of the other party knowing all the facts about one’s identity can foster open communication and robust debate,” D. Lowell Jensen, district court judge of the Northern District of California, wrote. “Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s order to discover their identity.”

“To the extent that you can divine something from the six or seven cases, there does seem to be a trend toward recognizing that this is an area that — because of the constitutional implications of outing anonymous speakers — the courts are treading lightly,” Robert Balin said. Balin, a partner at Davis Wright Tremaine, represented four anonymous defendants in a case brought by Credit Suisse Bank against Yahoo! message board posters.

But getting a uniform standard across jurisdictions may be difficult because many cases settle before the issue of the value of anonymous speech can be litigated, Balin said.

“The problem with these cases is, the defendants are your aunt, your uncle; they’re not people that are used to manning the First Amendment barricade. What they really want is out as quickly and painlessly as possible,” he said.

Internet service providers and Web hosts may be making it more difficult for companies to get users’ identities than they have in the past.

“For the hosts of these message boards, it appears to be industry standard to give notice now, but neither the hosts nor the ISPs will go on record for what their policy actually is,” Gray of Baker & Hostetler said. “They don’t want to be bound to it. If they don’t feel like giving notice in a particular instance, or if they screw up and forget to give notice, they don’t want to be on the hook for that.”

Yahoo!’s legal department did not return phone calls for comment. The Yahoo! Privacy Center Web page informs users that “Yahoo! will send personally identifiable information about you to other companies or people when: We respond to subpoenas, court orders or legal process.”

Other hosts, like AOL and Microsoft do not mention subpoenas in their privacy statements, although all are part of “TRUSTe,” an independent initiative that requires members to notify users of, among others, what personally identifiable information is collected from the user through the Web site, the organization collecting the information, how the information is used, and with whom the information may be shared.

First Amendment attorneys suggested that the known cases are only the tip of the iceberg because it is only recently that ISPs and hosts provided notice to users.

“The only ones that we would even find out about are the ones where there is notice. Because the person who has been unmasked and potentially fired from his job or retaliated against in some non-legal measure, never finds out that in actuality the cause was he said the boss was a jerk,” Gray said. “He’s just told that his services are no longer needed or that his wife’s services are no longer needed and goes on his merry way.”

There are so many cases where subpoenas are being complied with without notice to the users, that civil liberties groups are contemplating promoting legislation, she said.

One anonymous poster whose identity was revealed by her ISP even sued for violation of privacy rights, breach of written contract, and negligent misrepresentation. According to a complaint filed by Gray in federal district court in Los Angeles, “Aquacool_2000”, a Yahoo! user, sued Yahoo! for revealing his name to AnswerThink Consulting Group, an Internet Web consulting service company, in response to a subpoena without first providing him notice.

“Aquacool_2000” made derogatory remarks about the company’s management on the Yahoo! message board for AnswerThink, saying, among others, that one manager was “an arrested adolescent whose favorite word was ‘turd,'” and another was “so dull that a 5-watt bulb gives him a run for the money.”

The complaint alleged that AnswerThink filed a meritless complaint naming several Doe defendants, including Aquacool_2000, then before attempting to serve the complaint or seek leave of court to issue subpoenas prior to service, immediately subpoenaed the Does’ names from Yahoo!. Yahoo!, the complaint alleged, turned over Aquacool_2000’s identity without notifying him and without ensuring that the subpoena was valid.

The case settled, Gray said, and she could not discuss the terms of the settlement due to a confidentiality agreement. But, she said, the fight against the corporate plaintiffs by ordinary Internet users continues.

“These are people are doing nothing but speaking publicly and opining, editorializing in a manner that does not please corporate behemoths and their executives,” Gray said. “Instead of reacting against this with more speech, (companies) are acting to retaliate against them in ways that the legal system does not countenance.”