October 13, 2000



Court Says Online Posters
Have No Right to Anonymity

By STACY FORSTER
WSJ.COM

In a closely watched cybersmear lawsuit, eight online posters lost a First Amendment battle to keep their identities secret from a Florida executive who said their attacks damaged his reputation and got him fired.

The case was considered an important one because of its potential to set a precedent and help shape the legal debate over the right to anonymity and free-speech protections for online posters.

But the significance of the ruling by a Florida appeals court was unclear, some lawyers said, because the judges didn't issue any opinion addressing the constitutional issues. Their ruling was made without comment.

In the decision released Friday, the three-judge panel of the Third District Court of Appeals in Miami, rejected arguments from the posters that their identities should be protected until the merits of a defamation case filed against them by the executive, J. Erik Hvide, were evaluated by a court.

"[The decision says] anonymous posters are not provided any greater level of protection under the First Amendment than anyone else," said Mr. Hvide's lawyer, Bruce Fischman.

But Lyrissa Barnett Lidsky, a University of Florida law professor who helped represent the defendants, downplayed the significance of the decision.

"This case had the potential to really set an important precedent about the scope of the First Amendment right to speak anonymously in cyberspace, but the way the court did it, it doesn't give any guidance to future courts grappling with the issue," Ms. Lidsky said.

The importance of the case was underscored by the involvement of civil libertarians. The American Civil Liberties Union had sided with the posters, and was part of their legal team.

In its decision, the judges affirmed a lower court ruling that would allow Mr. Hvide to obtain information from message-board operators America Online Inc.(www.aol.com) and Yahoo! Inc. (www.finance.yahoo.com) to unmask the posters' identities.

The case dates back to September 1999, when Mr. Hvide filed a lawsuit against the anonymous posters, alleging they made false statements on Yahoo and America Online bulletin boards that damaged his reputation and led to his termination as chairman and chief executive officer at Hvide Marine Inc., a Fort Lauderdale, Fla., shipping company.

As is usual in such lawsuits, which are called "John Doe" cases because the defendants are unknown, Mr. Hvide sought and won a subpoena to force America Online and Yahoo to turn over information that would identify the posters.

However, the defendants hired lawyers and tried to get a court to overturn the subpoena. In May, a judge in Dade County Circuit Court in Miami denied their motion to quash the subpoena. But the judge granted a stay of her ruling so that the message-board writers, who used pseudonyms such as "justhefactsjack" to post their messages, could appeal.

The decision by the appeals court, which was dated Thursday, dissolved the stay. Ms. Lidsky said she and other attorneys representing the critics are exploring their options, but added that they are "limited" and that she expected their identities will ultimately be revealed.

Mr. Fischman said he expected Yahoo and AOL to turn over the critics' identities to Mr. Hvide soon.

The defendants' lawyers had argued their clients had a right to speak anonymously on the Internet.

The case is among more than 120 lawsuits that have been filed by companies or their managers alleging online defamation by unknown parties. Most of these cases are settled out of court.

Mr. Hvide's case was one of the first to reach an appellate level, and attorneys who follow Internet law had been hopeful it could help establish some legal guidelines. This case was also one of the first where the online critics had been able to preserve their anonymity while it proceeded.

In most cases, companies have been able to identify their anonymous critics with relative ease. To unmask them, companies or executives needed only to file a suit and then subpoena a message board operator for information. The company would usually comply with a court order in a matter of weeks.

Mr. Hvide's critics had alleged that he encouraged his company to cook the books and that the Securities and Exchange Commission was investigating him. Mr. Hvide denies the allegations, and the SEC declined to comment.

Mr. Hvide was fired as chairman and CEO of Hvide Marine in June of 1999, three months before the company filed for protection from its creditors under Chapter 11 of the U.S. Bankruptcy Code. The company emerged from bankruptcy protection in December under new management.

Mr. Fischman says Mr. Hvide will proceed with his suit against his critics, charging them with "defamation and intentional interference with an advantageous business relationship."

"Eric Hvide has been waiting a long time [to confront them]," Mr. Fischman says.

Write to Stacy Forster at stacy.forster@wsj.com.