May 26, 2000

MIAMI (APBnews.com) -- In a ruling that could force anonymous online posters into the open, a Florida judge has ordered America Online and Yahoo to reveal the writers of allegedly defamatory messages.

Dade County Circuit Court Judge Eleanor Schockett's ruling was made Thursday in a lawsuit by a former shipping company executive who claims he was libeled on message boards hosted by the two online companies. AOL and Yahoo, protected by earlier court rulings that Internet service providers (ISPs) are not publishers, are not defendants in the case.

If Schockett's order is upheld on appeal, contributors to online discussions could find themselves weighing their words more carefully. Critics say it would be the end of uninhibited speech on the Internet, where contributors can have their say without revealing their identities.

Financial message boards have become popular forums for anonymous posters to discuss not only stock prices, but also how companies are run, with sharp criticism often directed at executives or boards of directors. Corporations have begun following the discussions and sometimes suing online posters for their comments.

Unknown defendants

J. Erik Hvide filed suit against his anonymous critics after being fired as the head of Hvide Marine Inc. His attorney, Bruce D. Fischman of Miami, said he had been the target of a yearlong campaign that accused him of mismanagement and even criminal behavior. The company later filed for bankruptcy.

"He hired our law firm to sue the anonymous posters for defamation, libel and for intentional interference with a business relationship -- except the defendants are unknown, and we needed to find out who they were," Fischman said.

He said the judge had to balance the right to make anonymous accusations online with the right of someone to face their accuser.

Fischman subpoenaed AOL and Yahoo, seeking the identities of eight anonymous posters with screen names such as "justthefactsjack." The judge rejected a motion by Fort Lauderdale lawyer Christopher K. Leigh to quash the subpoenas.

The judge gave the two companies 20 days to turn over the names.

'A masked opponent'

If Leigh decides to appeal the decision, he could ask an appellate court to stay Schockett's order. Leigh could not be reached for comment today.

Clifford A. Wolff, who represents Yahoo, said the company would not take a position on the issue and probably wouldn't contest the order.

Fischman called the ruling a victory for the victims of anonymous attacks.

"Up until now, they have been really been fighting a masked opponent," he said. "How do you take their deposition, how do you settle with them, how do you determine what their motives are, how do you litigate the case?"

Fischman stressed that he is not trying to chill or curtail anonymous online postings, but that in this case, the message board writers overstepped the boundary between legitimate criticism and reckless allegations.

"We are not saying that individuals can't post anonymously. We are not saying that individuals can't criticize," Fischman said. "Absolutely, there is a First Amendment right for people to speak, and if people choose to be anonymous, they can speak any way they chose to speak.

"However, if they damage somebody, if they injure somebody, if they commit libel or interfere with a business relationship, then they can be held responsible and disclose who they are."

ACLU backs anonymity

Christopher Hansen, a senior national staff counsel with the American Civil Liberties Union, called Hvide's suit frivolous. The ACLU filed a friend-of-the-court brief in the case, weighing in on the side of the posters.

"One of the advantages of the Internet is having access to a huge audience. We have to tread carefully on the Internet and ensure that it has breathing room it needs," Hansen said.

Lyrissa Lidsky, an associate professor of law at the University of Florida in Gainesville who helped write the ACLU brief, said that over the last couple of years, companies have been going after online posters.

"There was an important principle at stake," Lidsky said. "How much of a right do Internet users have to speak anonymously online?"

She questions whether the online comments cited by Hvide were defamatory or merely speculation that the company was in financial straits.

Lidsky compared the suit to what have become known as SLAPP actions -- an acronym for Strategic Lawsuit Against Public Participation. Critics say that some corporations have tried to mire legitimate critics in litigation that can be costly for individuals even if they ultimately prevail.

David Noack is an APBnews.com staff writer (david.noack@apbnews.com).