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How ‘cybersmear’ lawsuits can block free speech

The growing difficulty of keeping John Doe status

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Analysis The right to anonymity on Internet bulletin boards is under threat again. A recent decision by the Florida Third District Court of Appeals ducked hearing an appeal against a lower court order that those who posted on web sites could have their names disclosed by their ISPs, even though the case had not been tried.

This means that Miami-Dade Circuit Court Judge Eleanor Schockett's May decision was upheld, although one small crumb of comfort is that the appellate court's action avoided the setting of a legal precedent because no written opinion was filed.

The defendants are named as "John Does" at the moment, but their identity will now be disclosed to plaintiff Erik Hvlde of Hvlde Marine in Fort Lauderdale, who complained about anonymous posts that resulted in his losing his job as CEO. Yahoo decided to shut down its message board devoted to a discussion of Hvlde Marine's stock without a request to do so from either the plaintiff or defendant - but almost immediately an alternative site was established on Quicken.

Dragnet?
Activity on the cybersmearing front has been increasing, as has the use of legal actions to discourage criticism of US companies: around a hundred other cases are currently going through the US courts, but there is still a dearth of precedents to give any useful guidelines. The main legal issue is whether the identity of anonymous posters should be revealed before the court decides if there is a substantive case to answer. It is very easy for a criticised organisation or individual to petition a court and get a subpoena served on an ISP to disclose the name and address of the poster of an allegedly defamatory post - without any prior determination of the merits of the case. Quite often the poster is not even informed this has happened.

The ISP has no legal option but to disclose the name, although some - like AOL - have a policy of giving perhaps 14 days warning of disclosure to the poster, so that the matter could be taken up with the court before the identity is disclosed. Once the plaintiff has this information, a defamation suit may be started, but very often the objective is to find out who the critics are, followed by the dropping of the case - especially if the critic is a disgruntled employee. If the case is carried on, the plaintiff's alleged defamation can easily result in the intimidation of the defendant, with enormous amounts for alleged damages being demanded, despite the guarantees of free expression in the First Amendment.

In cases pending in California and Virginia, it has yet to be decided whether subpoenas can be served on anonymous posters. The American Civil Liberties Union, the Electronic Frontier Foundation, Public Citizen, and the John Does Anonymous Foundation are helping defendants with their legal costs and supplying advice.

Les French acquired Itex Corp's garbage and sent incriminating documents he found in it about misstated earnings to the SEC, which resulted in a $50,000 fine against the company. But while the SEC was looking at the case, French posted messages criticising the company to a message board under a pseudonym, which resulted in a subpoena from Itex to discover his identity - and he was a former employee. He received $40,000 as a result of a false libel accusation by Itex and used this to set up the John Does outfit to help others whose freedom to express opinions was threatened. His foundation offers anonymous email addresses that cannot be disclosed - a donation is suggested - because the website does not have any information about the user's identity.

Stock manipulation or whistle-blowing?
There are two main kinds of bulletin board posts that may cause problems: messages may be malicious and untrue, especially when investors are discussing stocks, while on the other side, there are sometimes fraudulent posts by investors making untrue claims intended to cause the price of a stock to rise or fall - something severely frowned upon by the SEC. Short traders - those who want the share price to go down - are prone to skating rather close to such illegal market manipulation. Few people have any sympathy for the protection of libellers or fraudsters, but there is considerable support by freedom-loving people for a third and very large group of posters who wish to express their opinions within the freedom allowed by the First Amendment. This is the major concern now being actively supported by the civil rights organisations.

Public Citizen and the EFF have filed a motion in Ohio to cancel subpoenas obtained by AK Steel (formerly Armco). This is expected to be heard in the District Court in the Eastern District of Virginia in November and was described as "a blatant attempt to intimidate AK Steels's employees and the public". Some companies have backed down rather than face the wrath of civil rights activist organisations, lest their image suffer even more as a consequence. Public Citizen's staff lawyer Paul Levy likened the Internet to Speaker's Corner in Hyde Park, London, where robust opinions can be expressed - but with the speaker using old technology called a soapbox. He could have added that this right was enshrined in Magna Carta in 1215 (not that you'd notice these days - Ed).

The only argument of any substance for the allegedly maligned is that if they do not take action, it could be taken to be an implicit admission of guilt. They claim that they must therefore take action to protect their reputation, in rather the same way that trademarks have to be protected by warning those who use the trademark without permission, to stop the trademark being challenged for non-enforcement. It is only in cases where there is substantial evidence of passing off a product as being made by a trademark holder that legal action is likely, since most improper use of trademarks is inadvertent and harmless: damage has to be proved.

The legal actions have already had some chilling effects on bulletin board posters, despite the right to privacy being a founding principle of the Internet. Lawrence Lessig (formerly of Harvard but now at Stanford - and well-known for having written an amicus curiae brief at the request of Judge Jackson during in the Microsoft trial), summarised the problem neatly: "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." The question has become whether John and Jane Doe are freedom fighters or cybersmearers. ®

Related links:
John Does Anonymous
Web anonymity under siege

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