SCN: Anonymity

Fri Dec 1 09:28:01 PST 2000

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(Aaron Elstein, Wall Street Journal)---Two Internet users have successfully 
challenged a New Jersey company's efforts to unmask their identities for a 
defamation lawsuit, and free-speech advocates consider this ruling a major 
victory in protecting authors of unflattering online messages.  

The case appears to be the first time anonymous posters have succeeded 
in blocking a company's request for a subpoena that would have forced a 
message-board operator, in this instance, Yahoo! Inc., to turn over 
information that would divulge their identities.  

Dendrite International Inc., a Morristown, N.J., software company, had 
sought the subpoena as part of a cybersmear lawsuit it filed in the spring 
against its unknown online critics who, among other things, alleged it was 
cooking its books to inflate earnings.  

But in the ruling Tuesday, Judge Kenneth C. MacKenzie of New Jersey 
Superior Court in Morristown said the posters identities should remain 
secret because Dendrite "has failed to demonstrate that it was harmed by 
any of the posted messages."  

Judge MacKenzie had refused to automatically grant a subpoena to 
Dendrite as is usually routine in these cases. In an unusual twist, the judge 
had instructed Dendrite to publish a message on the board used by the 
posters to notify them of the case since their identities were unknown.  

Two of the four posters targeted by the company responded by hiring 
lawyers to represent them and contest the subpoena. Those two won their 
battle. However, Judge MacKenzie said Dendrite's efforts to identify the 
other two posters who weren't represented in court can proceed.  

"The company is pleased that it can continue its case against two of the 
defendants and plans to do so vigorously," says Bob Weigel, an attorney 
who represents Dendrite. However, the company is considering appealing 
the judge's decision to protect the identities of the other two. Dendrite 
believes the two posters whose identities it may uncover are employees.  

Attorneys at the American Civil Liberties Union and Public Citizen said they 
were pleased with the judge's decision. These groups have argued that 
anonymous expression on the Internet ought to be protected unless 
companies can first show they were economically damaged by what was 
said.  

"The ruling represents a great victory for free speech on the Internet," says 
Lyrissa Lidsky, a law professor at the University of Florida who wrote a 
friend-of-the-court brief for the ACLU in another cybersmear case.  

In his ruling, Judge MacKenzie cited a U.S. Supreme Court ruling that 
established a First Amendment basis for anonymous speech. While 
acknowledging that the Supreme Court case, which involved political 
leaflets, is "factually distinguishable" from the Dendrite matter, "Inherent in 
First Amendment protections is the right to speak anonymously in diverse 
contexts," Judge MacKenzie wrote.  

He said Dendrite had failed to make a case that would warrant revoking the 
defendants' constitutional protections.  

The ruling comes just six weeks after a Florida appeals court rejected 
efforts by anonymous online posters to protect their identities in a lawsuit 
brought by the former chief executive of Hvide Marine Inc. In that case, the 
former CEO blamed the online critiques for his ouster last autumn.  

Although Judge MacKenzie's ruling is binding only in New Jersey, it sends 
an important message to lawyers and judges across the country who are 
working on these cases, said Paul Levy, an attorney at Public Citizen. The 
Washington consumers group filed a friend-of-the-court brief on behalf of 
the defense in the Dendrite case. "You better believe that other lawyers and 
myself will be presenting this as a precedent," he says.  

Companies have filed more than 100 suits against unknown parties who 
criticize them online, alleging that the messages have damaged their 
businesses. None of these suits has gone to trial and only a handful have 
been ruled on by a judge, a sign to public-interest groups that companies 
have used the lawsuits primarily to unmask the people who are publishing 
things on online message boards that they don't like.  

"Hopefully, this ruling means companies won't sue unless they are serious 
about proving defamation and other allegations they lay out," Mr. Levy 
said.  

Abby Notterman, counsel at Internet Crimes Group Inc., a Princeton, N.J., 
firm that investigates message-board postings for corporate clients, said 
the decision should demonstrate to companies that lawsuits are a poor way 
to root out online critics. "The suits are really about attacking a fly with a 
hammer," she says. "The judge is saying the courts shouldn't be used by 
corporations to unmask individuals, and I think that is a reasonable 
decision."  

In addition to citing the Supreme Court ruling in his decision, Judge 
MacKenzie also cited a California federal court case involving a domain 
name dispute over Seescandy.com, which "found some limiting principles 
should be applied to the determination of whether discovery to uncover the 
identity of a defendant is warranted."  

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