Florida appeals court won't quash subpoena in cyberlibel case

By David Hudson
The Freedom Forum Online


A Florida appeals court has refused to hear the appeal of several "John Does" who argued that a trial court judge erred in forcing their Internet service provider and an Internet message board host to disclose their identities in a defamation lawsuit.

The legal battle over online anonymity began in September 1999 when Erik Hvide, former CEO of the Fort Lauderdale-based Hvide Marine Inc., sued several unknown individuals, claiming they had defamed him on the Internet via a Yahoo! message board.

In his complaint, Hvide alleged the defendants falsely stated that he was under investigation by the Securities and Exchange Commission and that he used illegal accounting practices.

Hvide sought a subpoena in Hvide v. John Does to order Yahoo! and America Online to disclose the identities of the defendants, who were known only by their screen names. AOL was included in the subpoena because at least one of the defendants posted messages on Yahoo! using an AOL e-mail address.

Last May, Florida circuit court Judge Eleanor Schockett ordered Yahoo! and AOL to reveal the names of the John Does.

The American Civil Liberties Union, which represented the defendants, filed an appeal to the 3rd District Court of Appeals. In June, the three-judge panel stayed the lower court's order and ordered the parties to file legal papers on the issue.

The appeals court held a hearing in September at which each side presented its arguments. On Oct. 12, however, the appeals court issued a short refusal dissolving its earlier stay:

"Following hearing, it is ordered that the petition for writ of certiorari is hereby denied. The stay entered by this Court on June 26, 2000 is dissolved."

The ACLU expressed disappointment and surprise at the appeals court's refusal to review the trial court's decision. "This was a very odd ruling," said Ann Beeson, national staff attorney for the ACLU. "The whole posture of this case is strange.

"There are some serious First Amendment implications (in the case), because corporations are using the court system to unmask critics, often solely to silence them," Beeson said.

"A court must balance the rights of legitimate litigants against the right to comment anonymously," she said. "We believe that the litigant must make a showing that they are likely to succeed in their case before the court can approve the disclosure of the identities of the defendants."

Bruce Fischman, attorney for Hvide, applauded the appeals court's order. "The lifting of the stay was important because it does not give Internet posters an elevated level of protection under the First Amendment that does not exist off the Internet," he said.

Fischman, author of such articles as "Your Corporate Reputation Online" and "Protecting the Value of Your Goodwill From Online Assault," says corporate figures must have the ability to discover who is defaming them.

"This case is important because the ACLU has taken the position that a John Doe can post messages and should then be able to defend a defamation suit anonymously," he said.

The ACLU counters that the suit and similar subpoenas will chill Internet speech and diminish the robust nature of anonymous online communication.

Beeson says the ACLU is "still exploring its options" in the case.