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.
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
Clifford A. Wolff, who represents Yahoo, said the company would
not take a position on the issue and probably wouldn't contest the
Fischman called the ruling a victory for the victims of anonymous
"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
"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
"There was an important principle at stake," Lidsky said.
"How much of a right do Internet users have to speak anonymously
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 (firstname.lastname@example.org).