SCN: Anonymous posting

[Steve]

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by Rebecca Fairley Raney, Online Journalism Review, excerpts


Posting online is not a carte blanche to promulgate lies about 
people. 

Last summer, four local officials...did what many individuals and 
corporations are doing in these cases: They sued for defamation 
and issued subpoenas to find out who their anonymous critics 
were.  

They initially lost their bid in court, but the officials recently asked 
the judge to review the decision. Regardless of the outcome, 
Stephen Moldow, the Webmaster, has ended up with thousands of 
dollars in legal fees as a result.  

In the last three years, hundreds, perhaps thousands, of these 
cases have emerged. In fact, the practice of serving subpoenas to 
identify online critics has become so common, it could happen to 
any person who sponsors forums on Web sites, bulletin boards or 
listserves.  

Though federal laws protect online publishers from being held 
responsible for comments posted by third parties, legal actions 
against participants in forums can decimate discussions and 
endanger a publication's ability to attract an audience.  

Lawyers on both sides of the issue point to court rulings that help 
cases for plaintiffs and defendants, but the question of whether to 
unmask anonymous persons who express opinions online is 
largely being decided by courts on a case-by-case basis.  

The two camps take clear positions. Most of these cases come 
from corporations, which search out their critics in order to protect 
their stock prices, reputations and ability to recruit employees.  

On the other side, civil libertarians defend anonymous critics 
because they believe the subpoenas chill free speech. Several 
groups, including the American Civil Liberties Union, the Electronic 
Frontier Foundation and Public Citizen have consistently 
represented defendants in recent years to preserve their rights to 
post anonymous opinions.  

The conflict that has materialized between the need to protect free 
speech and to stop the defamation in online forums is perhaps 
unavoidable.  

Before the Internet, companies held tight control over information 
about how they operated. Information came largely from securities 
filings, quarterly reports, press releases and the occasional 
lawsuit.  

But once message boards became available through sites and 
services such as America Online, Yahoo! and Raging Bull, 
companies lost control over information. Employees, shareholders, 
and competitors granted the power to reach a large audience 
without being named, took the opportunity to discuss companies in 
ways the business world had never seen.  

Much of the discussion subject to subpoenas centers on 
"economic issues -- whether a company's stock is properly valued, 
whether a product is faulty," said Megan Gray, a lawyer who has 
represented more than 20 defendants in these cases. She and 
others who have taken these cases argued that companies file 
them simply to stop criticism.  

"In the cases we've handled, the courts have said, 'Yeah, this is 
really about silencing people,' " said Cindy Cohn, legal director for 
the Electronic Frontier Foundation. Once subpoenas are issued, 
she said, "all discussion on the listservs or in the chat rooms just 
stops."  

On the other hand, the relentless churn of information, much of it 
wrong, can damage the reputations and market values of 
companies.  

"Postings that are inappropriate can rock the world of a company 
or a corporate executive," said Bruce D. Fischman, a lawyer in 
Miami who represents companies who seek to learn the identities 
of critics. "There is a lack of accountability at this juncture."  

Many publishers, he said, "use the lack of accountability to 
promote readership. They're a little like Jerry Springer in that 
respect."  

In an article on his law firm's Web site, Fischman offered tips to 
companies that want to protect their reputations online. He 
recommended that companies designate a company officer to 
review all postings that may affect perceptions of the company's 
brand or reputation. A team of employees should be available to 
research the accuracy of statements posted online within two 
hours.  

"If the posting is inaccurate and may affect the value of the 
company's stock or brand," Fischman's article said, "a news 
release should be prepared immediately setting the record straight, 
with a copy placed on the company's website." He recommended 
placing a link to the press release from the forum where the 
inaccurate comment was posted.  

Then he recommended that "appropriate legal counsel should then 
be notified to unmask the anonymous poster."  

That is the point at which Fischman departs from the civil 
libertarians, who generally encourage fighting speech with more 
speech. But Fischman said that approach isn't enough.  

"On the Internet, it doesn't quite work that way," he said. "Unless 
you know who's doing it," he argued, "you don't know if you've 
controlled it," because an individual can easily take his comments 
elsewhere on the Internet.  

Lawyers who have been involved in these cases recommend that 
online publishers take several measures: adopt policies that allow 
removal of comments, notify persons who use the forum if they are 
the subjects of subpoenas and get legal counsel quickly if 
subjected to a subpoena.  

Also, they emphasized that publishers who express their own 
opinions in online forums can be held liable and lose their 
protection against lawsuits over content.  

America Online, which has been subjected to hundreds of 
subpoenas in recent years that attempt to find the identities of 
people who post comments on its boards, has adopted a stringent 
policy in dealing with subpoenas.  

When the company receives a civil subpoena, it immediately 
notifies the person involved and gives him two weeks to respond. 
In many cases, the company contests the subpoenas.  

"We do reserve the right to review the subpoena for legal merit," 
said Nicholas Graham, a spokesman for AOL. "Many times, civil 
subpoenas get contested by AOL because they are improperly 
prepared."  

The motivation for the company to review subpoenas is clear; to 
do otherwise could cause the company to lose customers.  

"We treat our member privacy with a sacrosanct touch," Graham 
said. "It's really important that people understand that their member 
information is not shared willy-nilly with anyone who rings the 
doorbell and asks for it."  

Though they disagree on many issues surrounding anonymous 
speech, one matter brings the lawyers involved in these cases to 
agreement: that those who post comments online need to be 
responsible.  

"Posters need to think about problems," said Cohn of the 
Electronic Frontier Foundation. "Defamation is defamation. Posting 
trade secret information is likely to cause some trouble. Posting 
online is not a carte blanche to promulgate lies about people."  

"There is no clarity to this area in the law," said Fischman, the 
lawyer in Miami who represents companies in these cases. He 
said the issue is more likely to be shaped by new laws than by 
guidance from the courts. In fact, he said, he has received inquiries 
from members of Congress about how the law should change.  

"Online publishers better beware," he said. "They either self-
regulate and self-police, or they will be policed."  


Copyright 2002 Online Journalism Review   






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