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A Florida appeals court ruled Friday that ISPs can be compelled by subpoena to identify people who post defamatory messages on Internet bulletin boards, even when the libellous nature of the statements has yet to be proved.

In this case, Hvide Marine company former CEO Erik Hvide was seeking the identities of eight people who criticised both him and his company on a BBS. The subpoena had been temporarily blocked pending appeal, and the appellate court chose to let it proceed.

In representing the defendants, the American Civil Liberties Union (ACLU) had asked the court to rule on whether Hvide had actually been libelled before identifying the defendants. The ACLU argued that if there had been no libel, then the critics had a right to remain anonymous.

Typically in cases like this, a company finds itself bashed by what it suspects are disgruntled employees, and files a so-called "John Doe" suit against the unknown critic. But once the suit is filed, the plaintiff can use the evidence discovery process to learn the identity of the smartmouth.

Indeed, a company may not bother to pursue an expensive, time-consuming libel suit at all. Once it learns who's been dishing the dirt, assuming the person is an employee, the company can retaliate easily, and cheaply, enough.

"If someone charges libel, then the anonymity of a poster should be preserved until the libel is proved. Otherwise, the subpoena power can be used to silence anonymous, critical speech," Electronic Frontier Foundation (EFF) board-member Lawrence Lessig told the New York Times in comments regarding a similar case in Ohio which has yet to be decided.

The potential for companies to use the courts merely to unmask a critic they have no real intention of suing is painfully obvious. One wonders what the Florida court can possibly have been thinking. ®

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