Not Always Free Speech
By Kelley Beaucar Vlahos
- Those with quick access to the Internet and the urge to rant online
ought to think twice - what you post could come back to haunt you, in
As the number
of Internet users and electronic bulletin boards soars, so has the tendency
for people who use the perceived anonymity of the medium to lash out or
"flame," as it is called in cyber-speak, against public and
private figures, companies and institutions. But with the increased venting
comes more and more lawsuits from corporate lawyers who have discovered
posters' identities and sued them, arguing that their flaming has crossed
the line from free speech to defamation.
don't think about it," said Lee Tien, a lawyer for the Electronic
Frontier Foundation, an advocate for free speech and privacy on the Internet.
"They think what they say is more like a conversation and that the
words are effervescent and disappear into the air, and often they are
not. As a result, the things people say are likely to come back to bite
Since a Florida
appellate court forced Internet service providers in October 2000 to divulge
the identities of eight online posters who were being sued for comments
they made about a former corporate CEO, many states have allowed lawyers
to compel ISPs to reveal the identities of their users without evidence
like America Online and Yahoo! have softened the blow by giving their
users advance notice that they are giving their identities away, leading
to a hike in the number of lawsuits.
Varian Medical Systems in California won a $775,000 jury verdict against
two former workers who accused managers on at least 100 message boards
of discriminating against pregnant employees and being homophobic.
Bruce Fischman recently won a suit against a former employee of HealthSouth
who anonymously posted hundreds of messages about a CEO's wife having
lewd sexual affairs. The defendant was forced to give money to women's'
rights groups and to teach illiterate people to read.
not a zealot, but I don't believe that the right to speech is the right
to hurt someone," Fischman said. "Companies aren't going to
take this sitting down."
But not all
cases against online posters are necessarily valid, sending free speech
advocates scrambling to set standards that protect anonymity on the Internet
while striking a balance between true defamation and protected speech.
will sue for defamations that are clearly not defamation - they sue for
hurt feelings and name calling," or if they want to quell employee
dissension, said Robert Corn-Revere, a First Amendment lawyer in Washington,
the case, not every suit is successful.
2001, a California federal court ruled that online posters cannot be sued
when they are stating opinions, as protected under the anti-SLAPP (Strategic
Lawsuits Against Public Participation) statutes there. Nineteen states
have such statutes, which protect the right of citizens to publicly criticize
a corporation, government or organization without fear of retribution.
a New Jersey judge dismissed a lawsuit against a Web master who ran a
site used by some 60 anonymous posters to criticize Emerson borough government
officials. While some of the criticisms were clearly defamatory, the judge
quashed subpoenas for the identity of all 60 posters and said a narrower
request might be acceptable.
who went by the handle "Whadayaknow," was tracked down by his
former company Itex Corp. in 1998 after he issued complaints about the
company. They sued him for misrepresenting the firm, but he counter-sued
and won $40,000, which he used to set up a non-profit foundation to help
other anonymous posters.
gives birth to free speech," he said at the time. "It encourages
people to say things that are really on their minds."
said anonymity is fleeting and not all free speech will be protected.
Offenders will be subject to the power of the subpoena.
sure there are people and companies that abuse the privilege. I can assure
you that not all (subpoenas) are meritorious. But in our legal system,
plaintiffs have the right to proceed in court."