Target Carte Blanche Posting
libertarians see dangers in curbs on anonymous critics
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
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.
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.
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.
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.
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
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
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.
that has materialized between the need to protect free speech and to stop
the defamation in online forums is perhaps unavoidable.
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.
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.
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.'
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
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
'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.
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.
emphasized that publishers who express their own opinions in online forums
can be held liable and lose their protection against lawsuits over content.
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.
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.'
for the company to review subpoenas is clear; to do otherwise could cause
the company to lose customers.
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.'
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.
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.'
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.
better beware,' he said. 'They either self-regulate and self-police, or
they will be policed.'