June 9, 2000

By CARL S. KAPLAN

Judge Says Online Critic Has No Right to Hide

P

eople accused of anonymously posting libelous statements online may find it harder to keep their real-world identities secret following a judge's ruling in a

libel case in Florida.

The judge ruled that an anonymous critic is not entitled to any special privileges that would prevent or delay his unmasking in a lawsuit just because his comments were posted on the Internet.

The oral decision was issued from the bench late last month by Judge Eleanor Schockett of the Miami-Dade County Circuit Court in Florida, on behalf of a Fort Lauderdale businessman. The judge squarely rejected First Amendment arguments made by a lawyer representing one or more Internet speakers who had sought to protect their anonymity.

The judge ordered that Yahoo and America Online must comply with a subpoena and unveil the names of the lawyer's clients so that they may be formally named as defendants in a libel case.

The ruling, if not reversed on appeal, may serve as a precedent supporting the notion that anonymous speakers on the Internet, when informed or notified about pending subpoenas seeking to unmask them in the context of libel trials, do not have much of a chance of quashing the subpoenas on First Amendment grounds.

It may also serve to chill the overheated climate of financial message boards on the Internet, which feature pseudonymous postings celebrating and castigating public companies and their executives.

Judge Schockett's order becomes effective on June 14. Christopher K. Leigh, the lawyer who is representing the anonymous speakers, said in an interview that he intends to appeal the order next week to the Third District Court of Appeal in Miami. He said he will also seek a stay of the order pending resolution of the appeal.

"Our argument on appeal will be the same exact argument we used at the trial court," he said. "The law recognizes a limited First Amendment protection for anonymous Internet postings. As a public policy matter, we want to encourage people to engage in non-defamatory discourse about matters of importance to all of us."

Leigh added that given the First Amendment values at stake, a court should strive to preserve the anonymity of Internet speakers, and should order an unmasking only after the court has decided other important issues, like whether the case is frivolous or not and whether the comments in question are opinions, and thus not the stuff of defamation.

Lyrissa Lidsky, a professor at the University of Florida College of Law in Gainesville, helped write a friend-of-the-court brief in the case for the American Civil Liberties Union and the ACLU of Florida. She said that courts increasingly will have to grapple with the First Amendment questions raised by motions to quash subpoenas seeking to identify Internet speakers.

"It's not clear how far courts are willing to go to protect peoples' right to speak anonymously on the Internet, especially when there are allegations that defamatory statements were made," she said. "In our brief, we raised the question: What steps should a court take to protect anonymity? Do you divulge identities automatically or do you require more?"

Bruce D. Fischman, a Miami lawyer who is representing J. Erik Hvide, the plaintiff in the libel suit, recalled in an interview that Judge Schockett said there are no superior First Amendment rights for Internet speakers. A transcript of the court's decision was not yet available.

In the past two years, more than 70 lawsuits have been brought against "John Does" for posting anonymous and allegedly defamatory comments on Internet message boards, according to legal experts. In many cases, the anonymous speakers are not initially aware of the lawsuits or the resulting subpoenas that are sent out to reveal their identities.

Even in cases where the John Does do become aware of the subpoenas -- AOL, Yahoo and MSN inform users about their receipt of an unmasking subpoena -- an anonymous speaker may not be able to afford a lawyer to go to court and fight it.

Legal experts estimate that motions to quash have been filed in about five or six John Doe Internet libel lawsuits so far. Most of them have been concerned with technical objections to the form of the subpoenas. The Florida decision by Judge Schockett, by contrast, represents the first time that a "John Doe" motion to quash was decided -- and ultimately rejected -- on First Amendment grounds.

Like many libel lawsuits against Internet speakers, the Florida lawsuit has its roots in a Yahoo message board. The site features hundreds of boards devoted to discussions of individual companies and their stocks.

In an amended complaint filed in February, Hvide, former chairman and chief executive of Hvide Marine Inc., claimed that beginning in 1998, eight "John Does", including one or more persons using the screen names "justthefactsjack" and "inquizitr1," posted false and defamatory statements on the message board dedicated to discussion of his Florida-based company.

According to the complaint, the comments were so harmful -- falsely accusing Hvide of being under investigation by the SEC, engaging in illegal accounting practices and fraud -- that Hvide (pronounced Vee-Dee) was forced to resign.

Following the filing of the complaint, Hvide's lawyer issued subpoenas to Yahoo and AOL to determine the identity of "justthefactsjack" and "inquizitr1".

The online critics apparently learned of the lawsuit and subpoenas through local press accounts. They quickly hired a lawyer to block the unmasking.

In its friend of the court brief, the ACLU argued that speech on the Internet is unique owing to the network's broad reach, the low barriers to access and the ability of speakers to promptly post a reply to an objectionable posting. In light of these qualities, the ACLU said, defamation on the Internet should be subject to special court rules or mechanisms, and anonymity should be breached "only when necessary."

Among other things, the ACLU asked the court to first examine the underlying complaint to see if it was sufficiently detailed to warrant a lawsuit. If the case passed that first screen, it said, then the court should consider whether any defense exists to the defamation charge, as well as require the plaintiff to prove special economic harm -- all before ordering any unmaskings.

Judge Schockett declined to take these actions, which she implied were unprecedented in libel cases, according to lawyers who were at the hearing.

For his part, Fischman, Hvide's lawyer, said in an interview that the ACLU's suggestions were impractical.

"You can't pre-try the case," Fischman said. "You can't joust with Zorro, the masked man. A plaintiff is entitled, for starters, to figure out who the defendant is. That's necessary in order to plan legal strategy."

But David Sobel, a lawyer with the Electronic Privacy Information Center who has followed the John Doe Internet cases, disagreed. "The ACLU is not arguing that there is an absolute right to anonymity" on the Internet, he said. "We need some sort of mechanism to screen out the legitimate cases from the bad ones."