SCN: Libel

[Steve]

x-no-archive: yes

===========================

(Carl S. Kaplan, NY Times)---Last week Judge Richard L. Williams of 
the federal district court in Richmond, Va., rejected a series of 
motions and gave his seal of approval to a jury's verdict that 
awarded $675,000 in compensatory and punitive damages to Dr. 
Sam D. Graham Jr., a urologist in private practice in Virginia and 
former head of the department of urology at Emory University 
School of Medicine.  

According to evidence presented at the trial, Dr. Graham was the 
subject of statements published on a Yahoo message board 
accusing him of accepting illegal kickbacks while at Emory and of 
leaving the school under a cloud. The statements were written by an 
individual who went by the handle "fbiinformant" and who was later 
discovered to be Dr. Jonathan R. Oppenheimer, a pathologist based 
in Nashville.  

Following a two-day trial, a jury found on October 25 that by 
publishing the statements, Oppenheimer and a company that he 
operates were guilty of defamation and intentional infliction of 
emotional distress. In reaching its verdict, the jury necessarily 
concluded that statements penned by Oppenheimer were false and 
harmful to Graham's reputation and that Oppenheimer acted 
negligently and even recklessly in publishing them.  

Oppenheimer, a non-lawyer who represented himself at trial, said in 
an interview that he plans to appeal the judgment. He acknowledged 
that the factual statements he made are false, but he said that he 
believed they were true when he wrote them. "It's going to ruin me" 
if the award is not overturned, he said.  

Lawyers say the case may well represent the first time in the United 
States that a jury imposed a substantial libel award against a 
defendant who published an anonymous Internet message.  

The case also serves as an important reminder, experts said, that 
the rules of libel apply online much as they do in the world of 
newspapers and magazines.  

"What this case demonstrates is that people can be held 
accountable for what they post on the Net even though they posted 
anonymously," said Lyrissa Barnett Lidsky, a professor at the 
University of Florida's Levin College of Law and an expert on 
defamation in cyberspace.  

"People need to understand that if they make an allegation of fact 
about someone online that is damaging to that person's reputation, 
they better make sure that statement is true; otherwise they can be 
held liable for libel," she added.  

According to legal papers filed in the case, Dr. Graham resigned 
from his post at Emory in July 1998 to move to Richmond and enter 
private practice. Several months after his exit, on Feb. 7, 1999, the 
following message appeared on a Yahoo message board devoted to 
information about Urocor Inc., which operates a pathology lab in 
Oklahoma City:  

"Sam Graham, MD used to be the Department Chair of Urology at 
Emory Clinic in Atlanta. UroCor decided to underbid the Emory 
Pathology Department for pathology services and give Graham a cut 
of the money it got from doing the pathology. This worked well until 
the poor SOB got caught with his hand in the cookie jar. Poor guy 
had to resign his prestigious position." The message was signed by 
"fbiinformant."  

Graham was "absolutely shocked" when a friend referred him to the 
Yahoo posting, he recalled in a recent interview. "This whole thing 
where you can impugn somebody's honor and think you can get 
away with it because you're doing it anonymously is a bunch of 
baloney," he said. Eventually he filed suit.  

Graham's lawyers first tried to unmask the anonymous author by 
serving legal papers on Yahoo and Internet service providers, but 
those efforts were unavailing, said D. Alan Rudlin, one of Graham's 
attorneys. After seven months of investigation, the legal team 
connected Oppenheimer's name to the pseudonym through 
deposition transcripts stemming from a previous, unrelated lawsuit, 
Rudlin said. In one of those transcripts, Oppenheimer, who once 
worked at Urocor, testified that he had posted under the name 
"fbiinformant." Oppenheimer was fired from Urocor in 1997, Rudlin 
said.  

Before the trial, Oppenheimer conceded that he wrote the February 7 
message, that it pertained to Dr. Graham and that Dr. Graham was 
not forced to resign from Emory. During trial, Graham's attorneys 
presented evidence that the statements written by Oppenheimer 
regarding the illegal kickbacks were false and defamatory. They 
also sought to demonstrate that Oppenheimber acted unreasonably 
when he posted the information after hearing it from a third party, 
without making sufficient efforts to check its veracity.  

Last week, while denying the defendants' motions for a dismissal of 
the charges or a new trial, Judge Williams said in court that the 
messages were "despicable," according to Rudlin.  

The jury "very much did not like the defendant and very much liked 
Doctor Graham," said William V. Riggenbach, a lawyer who 
represented Oppenheimer's company, Prost-Data Inc., at the trial. 
He added that the gist of the defense, which the jury rejected, was 
that Oppenheimer's reliance on the false information relayed to him 
by the third party was neither negligent nor reckless, in light of 
Oppenheimer's belief that the information was true.  

Kurt A. Wimmer, a media lawyer at Covington & Burling, a law firm 
based in Washington, D.C., said that the Graham case was "rather 
unremarkable" aside from the fact that it's the first Net libel case of 
its kind. "There are a lot of areas in law where the offline and online 
worlds are treated similarly," he said. "Libel is one of those. If you 
libel someone anonymously and your ID is discovered, the law of 
libel is going to apply. It's that way on the Net and that way off the 
Net."  

Nor is anonymous speech, uttered on a wild and woolly online 
message board, subject to lesser standards of care than 
anonymous speech published in a newspaper, added Robert M. 
O'Neil, director of the Thomas Jefferson Center for the Protection of 
Free Expression and a law professor at the University of Virginia. "I 
don't think in this respect that the medium makes the slightest 
difference," he said.  

There's one big difference between defamatory speech in the online 
and offline worlds, however, said Professor Lidsky of the University 
of Florida. On the Internet, the ordinary person is a publisher, and 
thus the possibility that a small fry can become a defamation 
defendant is magnified.  

After all, if the Internet didn't exist, the defendant in the Graham case 
may have simply talked around a water cooler and no suit would 
have been brought, Lidsky explained. The conversation would have 
been "beneath notice," she said. But on the Internet, people who 
engage in "water cooler gossip" must appreciate that there is a 
possibility that they could be subject to a lawsuit if they defame 
someone, she said.  

Copyright 2000 The New York Times Company  






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