1st Amendment vs. Internet?
By Michael Hedges
Scripps Howard News Service
July 15, 1999
It was no shock that investors had strong opinions about the management of airbag manufacturer Breed Technologies Inc. since the stock value had fallen from nearly $40 a share in 1994 to less than $2.
But when an anonymous poster on an Internet site called Breed officials "morons," "lowlifes" and "liars," the company sued Yahoo! Inc., the service provider running the site, in an effort to learn the identity of the poster.
The lawsuit, the outcome of which is pending, illustrates what experts see as a tactic taken by an increasing number of companies: Slap the Internet provider with a subpoena demanding the identity of anonymous critics.
And it works. Servers such as Yahoo! routinely turn over the names of online clients when prodded by a subpoena, critics charge. The bottom line for Internet users: Don't count on those cheap shots taken under an assumed nickname remaining anonymous.
"We are seeing a rash of cases in which companies are abusing subpoena power to get the identities of online critics," said Shari Steele, director of legal services for the Electronic Frontier Foundation, a non-profit civil liberties organization.
"People have a legal right under the First Amendment to criticize companies anonymously. It is troubling that companies are using lawsuits this way to find out who is criticizing them. And that some providers are so easily giving up the names."
Yahoo! said the company does what it can to protect posters.
"We are very, very protective of user information," said Mike Riley, senior producer of Yahoo! Finance. "The only way we will reveal the identity of a user is if we are legally compelled to do so."
What that means, Riley said, is that the company will reveal the name of an anonymous poster if it receives a subpoena demanding the name. The company does not make a practice of resisting such subpoenas.
"That's not realistic," he said. "You'd be talking about potentially overwhelming legal costs."
But some legal experts said Yahoo! doesn't do enough to protect its users.
"In my dealings with Yahoo!, it really was apparent that they took the position that they weren't going to fight or resist any subpoena," said Megan Gray, an attorney with Baker and Hostetler law firm in Los Angeles.
When the companies get the name, they often drop the case, Gray said, demonstrating that identifying the critic, not any true sense of being maligned, was the motive of the suit. People revealed by service providers have been fired, harassed or faced other retribution, experts said.
Gray defended a "John Doe" client in a case settled Friday involving a suit by Xircom Inc., a California computer company. Court records show Xircom sued an anonymous poster who identified himself on a Yahoo! board as "A View From Within," and subpoenaed Yahoo! for the poster's name. The case was settled when the poster agreed to have his identity revealed to company representatives.
Gray said she could not discuss the Xircom case directly. But she did lament the general lack of protection given to posters on some Internet sites.
Although no one had accurate numbers on how many suits have been filed against Internet service providers, "it happens all the time," Gray said. "There are lots and lots of these that never get on the media radar screen because a subpoena is issued, the name is turned over and retribution is taken against someone who may not even know about it."
Even free-speech advocates concede that there are legitimate cases in which companies and individuals are libeled or defamed over the Internet. There are examples cited by experts of company executives being called child molesters, adulterers or embezzlers on the Internet.
No special protections against libeling or defaming a person apply to the Internet, experts said. Gray said that, in general, a statement posted on the Internet or elsewhere could be considered defamatory or libelous if it was specific, made with malicious intent, was "provably false" and caused measurable harm to the target.
KJC |
