Suits Target Carte Blanche Posting

But civil libertarians see dangers in curbs on anonymous critics

Rebecca Fairley Raney
posted: 2002-02-07

In the fall of 1999, Stephen Moldow set up a Web site called 'Eye on Emerson' to post information about his community. Moldow, who works as a vice president for a bank, describes his site as a free community service.

With his efforts, the city budget and school district budget for Emerson, N.J., became available on the Web for the first time. The minutes of public meetings were available. The site also contained a forum, where residents could discuss local issues under the cloak of anonymity.

But two years later, the discussion in the forum got Moldow sued.

According to Moldow's attorney, Louis J. Lamatina, one of those actions that can divide a community took place: the City Council tried to reorganize the Recreation Commission. It proved to be an unpopular move; individuals on Moldow's forum who had once supported City Council members turned on them. Using nicknames like 'Frustrated Voter' and 'Seeing Red,' members of the forum accused the officials of everything from lying to infidelity, according to the most recent documents filed with the court.

Last summer, four local officials, including two council members, 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, 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.'