SCN: Cybersmear

[Steve]

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Public Citizen, ACLU File Briefs To Restrict Cybersmear Suits

by Aaron Elstein

(Wall Street Journal)---Two public-interest groups are attempting to 
raise the bar for the growing number of companies that file lawsuits 
against anonymous online critics and try to unmask their identities.  

Public Citizen, a Washington consumer group founded by Ralph 
Nader, and the American Civil Liberties Union say companies 
should be required to demonstrate economic harm from the online 
postings before courts allow them to use legal measures to find out 
the identities of their critics.  

As part of a lawsuit, companies can easily subpoena online 
message-board services, which usually comply with court orders to 
turn over information that identifies posters. But Public Citizen and 
the ACLU have formally weighed in on four cases, urging the courts 
to toughen the standards.  

"A company should not be able to deny members of the public the 
right to speak anonymously simply by filing a complaint and making 
vague allegations of wrongdoing," Public Citizen said in a friend-of-
the-court brief filed last week in a case brought by Dendrite 
International, a Morristown, N.J. software maker that is battling its 
online critics in court.  

Public Citizen's brief in the Dendrite suit is its second in a cyberlibel 
case. The organization also is considering filing a similar brief in 
another case, says Public Citizen attorney Paul Levy. Similarly, the 
ACLU also has weighed in on at least two cyberlibel cases. The 
actions come amid an escalation in defamation lawsuits by 
companies against online critics.  

For their part, lawyers who help companies fend off online critics 
resent the involvement of Public Citizen and the ACLU.  

"It certainly appears the free-speech zealots are getting more 
involved," says Bruce Fischman, a Miami lawyer who has 
represented about a dozen companies in cybersmear cases, 
including one where the ACLU has weighed in. "The Internet has 
become a milieu for torching reputations of even the most respected 
companies," according to his firm's Web site (www.fhdlaw.com).  

The position being taken by the ACLU and Public Citizen could make 
it tougher for companies to fight back against their online critics. 
Many have been able to silence online critics through cybersmear 
lawsuits that have unmasked their identities. Blake Bell, a New York 
lawyer who tracks these cases, says more than 20 companies have 
sued anonymous online critics in recent months, bringing the total 
number of such lawsuits filed in the past two years to at least 100. 
"There has been a flood, an avalanche, of these suits in the past 
eight or 12 weeks," says Mr. Bell, whose firm has represented many 
companies in suits against online critics.  

Online forums, where people chatter about stocks and companies 
they love or hate, are usually rambunctious. But attacks against 
companies and their executives are often false and defamatory and 
can't be ignored, say companies that have filed suits. To prove 
defamation, courts require companies identify their critics. That 
leads companies to subpoena Yahoo, America Online and other 
message-board services, which usually turn over identifying 
information when presented with a court order.  

Public Citizen's Mr. Levy says most companies don't intend to 
prove defamation in court and instead seek to unmask their critics 
and pressure them to settle. Even though more than 100 cases have 
been filed, Mr. Bell says "very, very few" have ever gone to trial 
because few people can afford to battle a company in court.  

Ann Beeson, a lawyer for the ACLU, says companies shouldn't be 
allowed to embark on an expedition to identify their critics until they 
have shown the messages have hurt the company financially. "We 
are asking plaintiffs to establish actual economic injury," she says.  

But Mr. Fischman, the Miami attorney, says it isn't necessary to 
establish financial damage in order to prove defamation. "The ACLU 
and Public Citizen are asking the courts to rewrite defamation law," 
he says. "Establishing how much money you've lost because 
someone has posted defamatory statements about you that can be 
read around the world is not necessary to establish that defamation 
occurred."  

In the Dendrite case, the company believes one of the writers is an 
employee who posted confidential information about company sales 
on a Yahoo! Finance message board, according to the suit. The 
company says the leaks "caused irreparable harm." It is seeking a 
court order banning anonymous writers from posting defamatory 
messages. A hearing is scheduled Friday in New Jersey Superior 
Court in Morris County.  

Dendrite officials referred calls to outside counsel, Allegaert, Berger 
& Vogel in Princeton, N.J., and Gibson, Dunn & Crutcher in New York. 
Allegaert Berger didn't return calls Tuesday, and Gibson Dunn 
declined to comment.  

Public Citizen's brief in the Dendrite suit is its second in cyberlibel 
cases. The group filed its first in May in a case brought by Thomas 
& Betts. The Memphis, Tenn., electronic components maker earlier 
this year sued unnamed persons, believed to be employees, 
alleging they posted defamatory and confidential information on a 
Yahoo message board.  

Meanwhile, the ACLU is helping represent an anonymous critic of J. 
Erik Hvide, the former chief executive of Hvide Marine, a small Fort 
Lauderdale, Fla., company. Mr. Hvide alleges that his online 
attackers played a role in his being fired last summer, a few months 
before the company filed for Chapter 11 bankruptcy protection. Mr. 
Hvide is represented by Mr. Fischman.  

The ACLU argued in a brief filed in February that the case should be 
litigated without releasing the identities of the critics. Yahoo and 
AOL have withheld revealing the critics while a judge is considering 
the matter.  

A second ACLU case involves a state judge in Pennsylvania who 
alleges she was defamed online. Judge Joan Orie Melvin of the 
Pennsylvania Superior Court sued her anonymous critics in March 
1999 after they posted messages on America Online saying that she 
lobbied Governor Tom Ridge to appoint an unidentified lawyer as a 
judge. Alleging defamation, Judge Melvin filed suit in Virginia, where 
America Online is based. The ACLU argued in a brief filed last 
September that the allegedly defamatory critiques were political 
expression and the writers' anonymity should be protected.  

A Virginia judge quashed the Pennsylvania judge's subpoena, and 
the matter has since been transferred to state court in Pittsburgh, 
where it is pending.  

Copyright 2000 Dow Jones & Company  





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