SCN: Anonymous posting

[Steve]

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Judge Says Online Critic Has No Right to Hide

by Carl S. Kaplan

(NY Times)---People accused of anonymously posting libelous 
statements online may find it harder to keep their real-world 
identities secret following a judge's ruling in a libel case in Florida.  

The judge ruled that an anonymous critic is not entitled to any 
special privileges that would prevent or delay his unmasking in a 
lawsuit just because his comments were posted on the Internet.  

The oral decision was issued from the bench late last month by 
Judge Eleanor Schockett of the Miami-Dade County Circuit Court in 
Florida, on behalf of a Fort Lauderdale businessman. The judge 
squarely rejected First Amendment arguments made by a lawyer 
representing one or more Internet speakers who had sought to 
protect their anonymity.  

The judge ordered that Yahoo and America Online must comply with 
a subpoena and unveil the names of the lawyer's clients so that 
they may be formally named as defendants in a libel case.  

The ruling, if not reversed on appeal, may serve as a precedent 
supporting the notion that anonymous speakers on the Internet, 
when informed or notified about pending subpoenas seeking to 
unmask them in the context of libel trials, do not have much of a 
chance of quashing the subpoenas on First Amendment grounds.  

It may also serve to chill the overheated climate of financial 
message boards on the Internet, which feature pseudonymous 
postings celebrating and castigating public companies and their 
executives.  

Judge Schockett's order becomes effective on June 14. Christopher 
K. Leigh, the lawyer who is representing the anonymous speakers, 
said in an interview that he intends to appeal the order next week to 
the Third District Court of Appeal in Miami. He said he will also seek 
a stay of the order pending resolution of the appeal.  

"Our argument on appeal will be the same exact argument we used 
at the trial court," he said. "The law recognizes a limited First 
Amendment protection for anonymous Internet postings. As a public 
policy matter, we want to encourage people to engage in non-
defamatory discourse about matters of importance to all of us."  

Leigh added that given the First Amendment values at stake, a court 
should strive to preserve the anonymity of Internet speakers, and 
should order an unmasking only after the court has decided other 
important issues, like whether the case is frivolous or not and 
whether the comments in question are opinions, and thus not the 
stuff of defamation.  

Lyrissa Lidsky, a professor at the University of Florida College of 
Law in Gainesville, helped write a friend-of-the-court brief in the case 
for the American Civil Liberties Union and the ACLU of Florida. She 
said that courts increasingly will have to grapple with the First 
Amendment questions raised by motions to quash subpoenas 
seeking to identify Internet speakers.  

"It's not clear how far courts are willing to go to protect peoples' 
right to speak anonymously on the Internet, especially when there 
are allegations that defamatory statements were made," she said. 
"In our brief, we raised the question: What steps should a court take 
to protect anonymity? Do you divulge identities automatically or do 
you require more?"  

Bruce D. Fischman, a Miami lawyer who is representing J. Erik 
Hvide, the plaintiff in the libel suit, recalled in an interview that 
Judge Schockett said there are no superior First Amendment rights 
for Internet speakers. A transcript of the court's decision was not yet 
available.  

In the past two years, more than 70 lawsuits have been brought 
against "John Does" for posting anonymous and allegedly 
defamatory comments on Internet message boards, according to 
legal experts. In many cases, the anonymous speakers are not 
initially aware of the lawsuits or the resulting subpoenas that are 
sent out to reveal their identities.  

Even in cases where the John Does do become aware of the 
subpoenas -- AOL, Yahoo and MSN inform users about their receipt 
of an unmasking subpoena -- an anonymous speaker may not be 
able to afford a lawyer to go to court and fight it.  

Legal experts estimate that motions to quash have been filed in 
about five or six John Doe Internet libel lawsuits so far. Most of 
them have been concerned with technical objections to the form of 
the subpoenas. The Florida decision by Judge Schockett, by 
contrast, represents the first time that a "John Doe" motion to quash 
was decided -- and ultimately rejected -- on First Amendment 
grounds.  

Like many libel lawsuits against Internet speakers, the Florida 
lawsuit has its roots in a Yahoo message board. The site features 
hundreds of boards devoted to discussions of individual companies 
and their stocks.  

In an amended complaint filed in February, Hvide, former chairman 
and chief executive of Hvide Marine Inc., claimed that beginning in 
1998, eight "John Does", including one or more persons using the 
screen names "justthefactsjack" and "inquizitr1," posted false and 
defamatory statements on the message board dedicated to 
discussion of his Florida-based company.  

According to the complaint, the comments were so harmful -- falsely 
accusing Hvide of being under investigation by the SEC, engaging in 
illegal accounting practices and fraud -- that Hvide (pronounced Vee-
Dee) was forced to resign.  

Following the filing of the complaint, Hvide's lawyer issued 
subpoenas to Yahoo and AOL to determine the identity of 
"justthefactsjack" and "inquizitr1".  

The online critics apparently learned of the lawsuit and subpoenas 
through local press accounts. They quickly hired a lawyer to block 
the unmasking.  

In its friend of the court brief, the ACLU argued that speech on the 
Internet is unique owing to the network's broad reach, the low 
barriers to access and the ability of speakers to promptly post a 
reply to an objectionable posting. In light of these qualities, the 
ACLU said, defamation on the Internet should be subject to special 
court rules or mechanisms, and anonymity should be breached 
"only when necessary."  

Among other things, the ACLU asked the court to first examine the 
underlying complaint to see if it was sufficiently detailed to warrant 
a lawsuit. If the case passed that first screen, it said, then the court 
should consider whether any defense exists to the defamation 
charge, as well as require the plaintiff to prove special economic 
harm -- all before ordering any unmaskings.  

Judge Schockett declined to take these actions, which she implied 
were unprecedented in libel cases, according to lawyers who were 
at the hearing.  

For his part, Fischman, Hvide's lawyer, said in an interview that the 
ACLU's suggestions were impractical.  

"You can't pre-try the case," Fischman said. "You can't joust with 
Zorro, the masked man. A plaintiff is entitled, for starters, to figure 
out who the defendant is. That's necessary in order to plan legal 
strategy."  

But David Sobel, a lawyer with the Electronic Privacy Information 
Center who has followed the John Doe Internet cases, disagreed. 
"The ACLU is not arguing that there is an absolute right to 
anonymity" on the Internet, he said. "We need some sort of 
mechanism to screen out the legitimate cases from the bad ones."  

Copyright 2000 The New York Times Company





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