Appeals Ct: Hvide Can Probe Online Posters' Identities
By Phyllis Plitch
Of DOW JONES NEWSWIRES

10/13/2000
Dow Jones News Service
(Copyright (c) 2000, Dow Jones & Company, Inc.)

NEW YORK -(Dow Jones)- A Florida appeals court has rejected efforts by anonymous online posters to shield their identities, in a closely watched "John Doe" case that drew the involvement of the American Civil Liberties Union.

The decision is a victory for J. Erik Hvide, the former chief executive of Hvide Marine Inc. (HVDMV), who filed a defamation lawsuit against the posters, whose critiques he blames for his ouster last year.

It also marks a setback for the ACLU and Internet free speech groups that have been crusading on behalf of online posters' right to hang on to their anonymity, which they say has constitutional implications.

Because the Third District Court of Appeals did not offer an oral or written opinion, and ruled in what was considered an unusual manner by not taking up the merits of the appeal, free speech advocates viewed it more as a frustration than as a huge defeat.

"The court ducked it," said Chris Hansen, senior staff attorney at the ACLU, who worked on the case. "It's hard to get an appeals ruling on a case like this, it's unfortunate the court refused to give us one. This was an opportunity to provide clarity and I find it very disappointing we didn't get it."

Bruce Fischman, Hvide's lawyer, didn't quite see it the same way, concluding that the court's action indicated that anonymous posters don't "have an elevated right of protection" under the First Amendment.

"Every person who posts on bulletin boards, who may libel someone, is at risk that their true identity will be revealed," he said. "The Internet is a society that is becoming more civilized, and people must use logic and restraint."

Case Began With Eight 'John Does'


Regardless of the broader legal implications, the decision means that the online posters will likely have their identities revealed.

The case stems from a 1999 lawsuit filed by Hvide against eight so-called John Does, who under the cover of various aliases, such as "justthefactsjack," allegedly posted false and defamatory messages.

Hvide tried to unmask the John Does by subpoenaing Yahoo Inc. (YHOO) and America Online Inc. (AOL) for the information. After defendants in the case got wind of the lawsuit, they tried to stop Hvide from learning their true names.

A Miami-Dade circuit court judge, however, rejected their efforts to quash the subpoenas - which was the only issue in the appeal. When the higher court agreed to hear arguments on the case, it put the process of identification on hold. But in disposing of the case Thursday, the court essentially went back to square one, denying the defendants' petition for review and dissolving the previously ordered stay.

So-called cyberliberties groups and many academics argue that much of the speech on message boards is constitutionally protected expression and that procedures should be in place to keep John Does' actual identities under wraps until it can be shown that lawsuits are not frivolous.

But because the appeals court didn't touch on the constitutional issues at play, its precedential value is practically nil, said Lyrissa Barnett Lidsky, who teaches media law at the University of Florida College of Law and who helped write the appeals brief. And the ACLU plans to continue raising the issue whenever it can, Hansen said.

"It's a setback, but not a full fledged defeat for all potential John Does in the pipeline," Lidsky said.

Hvide Marine filed for Chapter 11 bankruptcy last September, several months after Hvide left his post at the family business. The company, which provides vessels to support operations at offshore oil fields, emerged from bankruptcy several months later.

-By Phyllis Plitch, Dow Jones Newswires, 201-938-2357
phyllis.plitch@dowjones.com
(Michael Rapoport contributed to this story.)



      




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