Web-posted: 12:14 a.m. May 27, 2000
MIAMI -- A Miami-Dade County judge's preliminary ruling in a defamation
case should send a cautionary message to Internet users that they
can't hide behind the anonymity of a screen name, legal experts
"The message is, 'Think your speech is protected on the Internet?
Think again,'" said Howard Simon, Florida executive director
of the American Civil Liberties Union.
The case, which involves conflicting constitutionally protected
rights, could produce the first national standard for Internet servers
regarding disclosure of the identities of chat room participants.
J. Erik Hvide is suing as many as eight people whose identities
he does not yet know. His lawyers say the their Internet postings
resulted in his ouster as chief executive officer of Hvide Marine,
a global marine services company based in Fort Lauderdale.
Neither side argues that Internet users can never be sued for what
they post anonymously, nor do they claim the Internet should operate
under rules that are different from those for other forms of communication.
Where they differ is over the point at which users forfeit their
right to remain unknown to the subjects of their commentary.
Hvide, represented by the Miami law firm of Fischman, Harvey &
Dutton, says he also has a constitutionally protected right: to
know the identity of his accusers.
"What distinguishes the case from many being filed around the
country," attorney Bruce D. Fischman said, "is the defendants'
claim that their constitutional right to remain anonymous is superior
to the rights of an individual who has been injured."
Fischman won a ruling Thursday from Miami-Dade Circuit Judge Eleanor
Schockett ordering America Online and Yahoo! to reveal the identities.
Schockett allowed 20 days for appeal -- a virtual certainty. Yahoo!
has recently changed its policy and now contacts clients who are
being sued, giving them 15 days notice before disclosing their identity.
But no legal standard has yet been established nationally for how
these cases are handled.
"The issue is very topical," Fischman said. "We're
claiming that, because of these anonymous postings on the financial
bulletin board, our client lost his job as president and CEO of
Hvide Marine. Our position is the defendants threatened the board
of directors that 'you will be held liable for malfeasance if you
don't get rid of this guy.' They said Erik and the corporation were
tied into illegal activities, which certainly is not true. They
attacked him for the demise of the corporation. At every job interview
he has to say whether this is true or not."
Attorney Christopher K. Leigh, who represents at least three defendants,
argues that the judge should first have determined the nature of
the anonymous speech and whether it is deserving of protection before
she ordered the names released.
"The way you get to that balancing under the law is the role
of the court, to determine whether a statement is pure opinion and
therefore privileged, and the identity of the speaker is irrelevant
for that determination," Leigh said. "We asked the court
to adopt that approach, which balances the interests of both sides,
but she declined."
The ACLU's Simon says the case involves more than just the "right
to speak frankly and anonymously over the Internet."
"Anonymous speech has a long tradition in this country, and,
whatever the message, the medium has to be free, whether it's the
Internet or someone handing out fliers on the street using a pseudonym,"
Simon said. "Before the judge drastically curtails free-speech
rights, including the right to speak anonymously for such things
as criticizing your boss, she should determine whether or not the
plaintiff's need to get the identity of these people meets some
kind of reasonable legal standard that justifies inhibiting free
Simon said Internet users had better check the disclosure policy
of their service provider.
"Consumer, beware," he said. "If you want to talk
in a frank way over the Internet, if you want to criticize your
employer or a politician, you better check the disclosure policy
to know for sure you're not going to be hauled into court for a
But University of Miami law professor Michael Froomkin says the
presumed anonymity of Internet users does not shield them once they
have disclosed their identity to a service provider.
"It's not like confiding in your spouse or priest or attorney,"
Froomkin said. "This is no different from a court compelling
a printer to disclose the identity of an anonymous pamphleteer.
The real danger here is abuse of the legal process."
Ellis Berger can be reached at firstname.lastname@example.org or 305-810-5004