Online Critics Get Tougher In Fight to Stay Anonymous

By STACY FORSTER
WSJ.COM

What's worse than taking a barrage of anonymous criticism posted online? For J. Erik Hvide, it's when the attackers get themselves a lawyer.

Mr. Hvide (pronounced vee-dah) is the former chief executive officer and chairman of Hvide Marine Inc., his family's marine-services company, based in Fort Lauderdale, Fla. He was fired last summer amid the company's financial troubles, but he claims his dismissal was tied to attacks from anonymous posters on a Yahoo! Inc. discussion board.

Mr. Hvide went to court in September 1999 to try to unmask his online critics, but his task has been unusually complicated. Four of the eight people that Mr. Hvide named as "John Doe" defendants in his suit are now being represented -- anonymously, of course -- by a Fort Lauderdale attorney, Christopher Leigh.

Executive officials and corporate lawyers alike are paying close attention to how Mr. Hvide's case turns out. University of Florida law professor Lyrissa Barnett Lidsky, who filed an amicus brief on behalf of the American Civil Liberties Union, says cases like this are determining if there's a constitutional right to speak anonymously on the Internet.

"[These cases are] significant because they're forcing courts to grapple with the extent of free speech in cyberspace," she says.

Mr. Leigh filed a motion in October 1999 to quash the subpoena that would reveal Mr. Hvide's online critics. And though Miami-Dade County Circuit Court Judge Eleanor Schockett last week ordered Yahoo and America Online to turn over the names, she has granted a stay that will give the posters time to appeal. Both Yahoo and AOL are waiting on a final decision from the courts before revealing any information.

The John Does' lawyer, Mr. Leigh, says he will ask for an extension of the stay and, in any case, plans to file an appeal. Meanwhile, the judge ruled that all of Mr. Hvide's critics -- not just Mr. Leigh's clients -- will be able to keep their identities secret for at least 20 days and perhaps longer if Mr. Leigh proceeds with his appeal.

One of the John Does in the case, a Yahoo message-board participant going by "justthefactsjack," read about Mr. Hvide's lawsuit in a local business journal and realized he would be named as a defendant. But a recent change in Yahoo's policy will make it easier for all John Does to know when they are being targeted.

Yahoo used to respond to subpoenas without notifying the targets -- and often before the John Does knew it. But after coming under fire from defendants, the Web portal changed its policy in early April and now notifies posters whose information has been requested, giving them 15 days to respond. Yahoo didn't respond immediately to requests this week for information about the case.

Although Mr. Hvide's case was initiated before Yahoo's policy was changed, it's clearly getting harder for companies and individuals to go after anonymous online critics. Within the last few years, as message boards have grown in popularity, so too has the number of lawsuits of this kind.

Protection of online identities is vital for Internet users, says the ACLU's Ms. Lidsky. If John Does "have wherewithal and they hire a lawyer, they might be able to prevent having their identities disclosed," she says.

Ms. Lidsky noted, however, that the extra notice might not make much difference if judges routinely order that posters' identities can be disclosed, regardless of a suit's validity.

AOL, which is involved in Mr. Hvide's suit because many people use the service to access Yahoo message boards, has a long-standing policy of giving its users two-week's notice before it responds to a subpoena for their personal information, providing them with an opportunity to challenge the request.

Because it has more information about its users, like their billing addresses and credit card account numbers, AOL goes a step further and typically sends a letter via Federal Express and provides the account holder with a copy of the subpoena.

Rich D'Amato, a spokesman for AOL, says Mr. Hvide's isn't the first case in which a user has challenged a subpoena. "That's the purpose of the AOL policy, in some ways -- to avail themselves of an opportunity to challenge [a subpoena]," Mr. D'Amato says.

John Doe attorney Mr. Leigh contends that none of his clients' postings were defamatory, and fall under the category of protected opinions.

But Mr. Hvide vehemently denies accusations leveled at him on the online message boards and is seeking unspecified damages. His complaint says the postings were "malicious and intolerable defamatory statements."

He filed a complaint in September against the anonymous posters because of comments he says impugned his reputation, both personally and professionally, and which he says led to his dismissal. His complaint refers to postings that imply, among other things, that Mr. Hvide was the target of a Securities and Exchange Commission investigation, that he was connected with corruption at the Port Everglades Port Authority, that he encouraged illegal accounting practices, and that he committed fraud and was single-handedly responsible for the company's financial woes. He denies all the allegations.

Mr. Hvide has no criminal record, nor is he the target of any pending investigations, says his attorney, Bruce Fischman, with the Miami law firm of Fischman, Harvey & Dutton. The SEC would neither confirm nor deny any investigations into the company.

Mr. Hvide was ousted by Hvide Marine's board last summer. In September, the company filed for protection from creditors under Chapter 11 of the U.S. Bankruptcy Code. It emerged from Chapter 11 in December, and its shares are now trading under a new symbol, HVDM, on the OTC Bulletin Board.

Last month, Hvide Marine reported a net loss of $12.9 million for the first quarter ending March 31, compared with a loss of $9.1 million in the year-earlier period. Revenues fell 13% to $78.6 million from $90.4 million a year ago.

Mr. Fischman argues that his client's right to face his accusers in court supersedes their right to anonymous speech. "They need to come into court and defend their actions, and if they win, they win; if they lose, they lose," he says. "They're in the same boat as any defendant."

Mr. Leigh says he will propose that the appellate court apply a balancing test by examining the postings that are alleged to be defamatory and then determining whether or not they qualify as protected opinion.

"In order to protect the right of anonymity, the court can recognize certain postings as being clearly protected, and in those cases, the motivation for the plaintiff is simply to silence legitimate criticism," Mr. Leigh says.

But Blake Bell, an attorney who specializes in Internet law with the New York law firm of Simpson Thacher & Bartlett, says that is a difficult strategy for defendants to pursue because, in effect, they're asking the court to make decisions that would ultimately be made in a trial before the trial even begins. "That's putting the cart before the horse," Mr. Bell says.

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