Re: 7/10/00 - Associates: Cybersmear Pioneer
Associates: Cybersmear Pioneer
Michael D. Goldhaber
The National Law Journal
July 10, 2000
When Megan Gray was a first-year, she felt discouraged from developing her own small-bore clients. Gray promptly left O'Melveny & Myers for the Los Angeles office of Cleveland's Baker & Hostetler. Today, as a fifth-year, she has a million-dollar book of business and is the nation's leading private cybersmear defense lawyer.
"Cybersmear" is what corporations claim they suffer when anonymous posters defame them on the Web. Suddenly, in the past 18 months, experts have seen hundreds of cybersmear claims filed -- along with subpoenas to identify the cybersmearer.
In Spring 1999, Gray represented the first John Doe to try to defend himself against a cybersmear claim and quash the subpoena. This summer, she represents the first John Doe to fight back against such a claim, suing Yahoo! for disclosing his identity.
Gray earned her B.A., M.P.A., and J.D. from the University of Texas at Austin. A minor in Russian helped her land a short stint as a foreign correspondent in Moscow for Cox News Service, which sparked her interest in the First Amendment.
But if you ask her how she got into Internet law, she'll tell you "the answer is porn." "In the early days of the Web," she explains, "there were fan sites and porn sites, and that's about it." She would develop monitoring programs for clients whose sites were hijacked by pornographers, and the work grew from there.
Today, Gray has a broad intellectual property practice, more than 80% of it Web-related, but only 10 percent cybersmear. She supervises two associates -- and often farms out work to partners. Despite the stereotype of diaper-clad Net moguls, she is, at age 30, younger than all her clients.
In a typical cybersmear case, the objecting company gets a subpoena forcing the host of the message board -- for instance, Motley Fool -- to release the Internet address attached to the objectionable posting. Then, if necessary, it gets a subpoena to learn the identity of the person at that Internet address from the Internet service provider -- for instance, Earthlink. The 1996 Communications Decency Act renders portals and ISPs immune from liability for third-party defamation.
Gray says that most cybersmear claimants are bullies who will back down as soon as they're confronted. "I'll call and say, 'Hi I'm the attorney representing so-and-so.' They'll say, 'Oh shit. OK, never mind.' "
But in her two most famous cases, the anonymous posters weren't so lucky.
In Xircom Inc. v. John Doe, the John Doe in question read about the case against him in the newspaper before Yahoo! could comply with the subpoena. He called Gray, and she filed a motion to quash the subpoena in Ventura County [Calif.] Superior Court.
John Doe prevailed on state procedural grounds (the subpoena had been issued in violation of the mandatory discovery stay). He then struck a settlement by which he confidentially revealed his identity to select executives and confirmed that he had never been a Xircom employee.
The new case, John Doe v. Yahoo! Inc., could go to trial this winter in federal court in the Central District of California. This John Doe, who dubbed himself Aquacool_2000, after an office water cooler, was an employee and shareholder at AnswerThink Consulting Group Inc. On a Yahoo! chat board, he called AnswerThink "poorly managed," labeling one executive dull as a five-watt bulb and another "an arrested adolescent whose favorite word is turd."
To which the only proper reply is "Oooohh!"
Aquacool alleges that AnswerThink retaliated with a cybersmear suit in the Southern District of Florida and, after discovering his identity, fired him and denied him cash and stock options. He's suing Yahoo!, which disclosed his identity, for invasion of privacy, breach of contract, false advertising and negligent misrepresentation.
In its respect for online privacy, Gray says, Yahoo! is the worst of a bad bunch. "Online privacy by Yahoo! is a charade," she has said. "Yahoo! will comply to any subpoena without considering the substantive or technical legitimacy." Indeed, she says, it has full-time employees whose job it is to respond. "Yahoo!" she has argued, "has no right to hand over this information without notice to the user just so a bunch of thin-skinned executives can find out who's badmouthing them."
The ACLU hopes Gray makes new law. It has intervened in Aquacool's case, and has already filed ambitious cybersmear briefs in Dade County, Fla., and Allegheny County, Pa.
First, the online free-speechniks say, any cybersmear complaint must include specifics of the alleged smear. Second, no subpoena should issue without giving the John Doe notice and an opportunity to protect his anonymity in court.
What would be the appropriate inquiry? Vic Walczak, director of the Pittsburgh ACLU, would require a cybersmear plaintiff to show a significant likelihood of success on the merits, a balance of hardships tipping in its favor and no less-intrusive alternative. Thus, the subpoena would halt if the claim were weak or could be resolved on the basis of interrogatories, or as a matter of law.
If judges buy this argument, the New York Times v. Sullivan of the Internet age just might be a case brought by a fifth-year associate on behalf of a potty-mouthed, mediocre rankout artist named after a water cooler.
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