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Activists
See Progress For Anonymous Web Posters
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.
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.
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.
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