Activists See Progress For Anonymous Web Posters

By Phyllis Plitch

Dow Jones News Service
(Copyright (c) 2000, Dow Jones & Company, Inc.)

NEW YORK -(Dow Jones)- Whenever Internet free-speech advocate Paul Levy's "John Doe" cases generate publicity, his e-mail inbox fills up with SOS's from similar defendants searching for their own legal assistance.

An attorney with Public Citizen Litigation Group, Levy's mission is to force a legal wedge between anonymous message-board posters and corporations trying to uncover the source of so-called cybersmears.

The group, founded by Ralph Nader, is one of a handful of organizations taking up the cause of these defendants, increasingly finding themselves sued on defamation or other grounds - such as spilling confidential company information.

Many of the cases are frivolous, this cadre of free-speech purists maintain, and threaten anonymous speech, which they say has constitutional implications. But they can only take a small percentage of the escalating number of cases. At least 100 have been filed, experts say.

"They keep coming fast and furious - we are only one little organization," said Levy. "There's only so much we can do."

All the more reason for their strengthened determination to line up a few favorable higher-court rulings. A primary goal is to shore up procedural safeguards to make companies have to pass some legal hurdles before they can unilaterally identify online critics through the simple issuance of a subpoena.

Treading in uncharted legal territory and for a relatively short time period, that's something they still haven't got - and perhaps never will.

But over the past few months they've been able to lay claim to a few shreds of progress, including a change in policy by Yahoo! Inc. (YHOO) in April to give customers 15 days' notice before handing their names over to plaintiffs unless they file a motion to quash the subpoena. Some Internet service providers, including America Online Inc. (AOL), already gave such notice.

"It's a step in the right direction. It will lead to more challenges and visibility to these cases and will help in the formation of legal precedents," said David Sobel, general counsel at the Electronic Privacy Information Center, an advocacy organization that monitors and lends assistance to front-line defense lawyers.

Appeal Showdown Slated In Florida For John Does

But "the notice issue is only one piece," said Chris Hansen, senior staff attorney at the American Civil Liberties Union, also lending a hand in the John Doe battle. "The other piece is the misuse of the court discovery process to divulge identities. That issue continues to explode."

Activists are looking toward one of their first appellate showdowns. The case involves a defamation lawsuit filed last year in Florida against message-board posters by Erik Hvide, fired from his job as chief executive of Hvide Marine Inc. (HMARQ), an ouster his lawyer blames on the critiques. The company filed for bankruptcy last September, several months after Hvide left his post at the family business, which provides vessels to support operations at offshore oilfields.

Defendants, who suffered a setback when a Miami-Dade County circuit court judge rejected their efforts to quash Hvide's subpoena, got a second chance when a state appeals court agreed to review the ruling. Arguments in the case, which drew the involvement of the ACLU, are scheduled for next month.

The legal advocates argued in their brief to overturn the lower court's ruling that before online posters' identities are revealed, procedures should be instituted that would require a hard look by judges as to whether a plaintiff's case actually has some legal merit on its face.

Secondly, attempts should be made to resolve legal issues that can be ironed out without first unmasking Internet critics - such as whether the statements are constitutionally protected opinion. In the Hvide case, for instance, one poster griped that Hvide and "manglement (sic) said during the last quarterly conference call not three weeks ago that the company had liquidity for 1999! ... They knew then they had a major problem ... as shareholders, we should demand a complete SEC audit of the company."

The defense said that the statement, taken in context, "should be viewed merely as the hyperbolic venting of a frustrated shareholder angered by a sudden change in HMAR's fortunes. If so, this statement should clearly be protected as 'imaginative expression.' " As such, defense argued, the posters should have been allowed to seek dismissal of the case, without having their identities disclosed.

Company Lawyer: No Heads Are Being Chopped Off

Hvide's lawyer, Bruce Fischman, himself increasingly sought-after by plaintiffs hunting down pseudonymous Web posters, isn't very enamored with the free-speech camp's efforts to keep John Does' identities under wraps. He readily acknowledges that one of the goals in bringing suit is to find out who's behind the aliases.

For one thing, his client can't go the next step in the judicial system unless a named defendant has been served with process, he said. Secondly, there's no chance of settling unless there's a flesh-and-blood person with whom to hash out the case.

"Human beings should communicate and talk - they shouldn't hide under rocks," Fischman said. "We're not dealing with the King of England who is going to slice someone's head off for making a political speech. If they do speak anonymously and damage someone's reputation, they potentially may have to answer for that."

Fischman also dismisses his adversaries' attempts to inject up-front procedural hoops into the legal system.

"There's no pre-screening system in the American judicial system which would basically determine whether the plaintiff has the right to go from step one to step two," he said.

Other corporate lawyers had a similar take, predicting the higher court will end up squarely on Hvide's side. Blake Bell, senior counsel at Simpson Thatcher & Bartlett, who's handled a few cybersmear cases himself, said he would be surprised if the lower court wasn't affirmed.

"Placing hurdles and roadblocks that must be overcome by a plaintiff merely because a message board is involved with alleged instances of defamation would be unique in the law of defamation, libel and First Amendment law," said Bell, who also serves as editor of a Web site that tracks these cases.

While the free-speech contingent's constitutional message carries little weight with some corporate advocates, it has apparently resonated with at least one other plaintiff, another positive sign as far as Public Citizen's Levy is concerned.

Thomas & Betts Corp. (TNB) last week voluntarily dismissed a lawsuit filed in May against 12 "John Doe" Internet posters, some believed to be current or former company employees. Public Citizen represented one of the defendants.

In a joint statement, the company said that while it believes it has a legitimate interest in investigating releases of non-public information, "the John Doe litigation it commenced in California was not the best forum to address those concerns."

By dismissing the case, the company sought to "put to rest any concern that the litigation might chill fair and open discussion of the company's business," the statement said.

-Phyllis Plitch, Dow Jones Newswires; 201-938-2357;


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