October 13, 2000
Court Says Online Posters
Have No Right to Anonymity
By STACY FORSTER
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
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
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
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,
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
Mr. Fischman says Mr. Hvide
will proceed with his suit against his critics, charging them with
"defamation and intentional interference with an advantageous business
"Eric Hvide has been waiting
a long time [to confront them]," Mr. Fischman says.
Write to Stacy Forster at email@example.com.