Judge Rejects Online Critic's Efforts to Remain Anonymous
By REBECCA FAIRLEY RANEY
VENTURA, Calif. -- A California county judge on Monday
allowed a modem company to request the unmasking of
an anonymous online critic, rejecting arguments from the critic's
lawyers that the subpoena would violate his free speech rights.
The lawyers had asked Judge John J. Hunter of Ventura
Superior Court to prevent Xircom Inc. from issuing a subpoena
to Yahoo seeking the identity of the critic, who claimed to be a
Xircom employee on a Yahoo message board. They also
sought an order to prevent future subpoenas. The judge rejected
the free speech argument, saying that "there is no right to free
speech to defame."
Several companies have taken legal
steps against anonymous online critics
recently, issuing subpoenas to learn their
identities. But the Xircom case is the first
reported instance of a critic fighting back
in court to maintain his anonymity.
The case was spurred by two messages
posted in April on the Yahoo message
board devoted to discussion of Xircom.
The author, writing under the pseudonym
"A View From Within," claimed to be an
engineer at the company. He wrote that
Xircom produced faulty products, was
losing talented staff and was managed
poorly.
"Xircom use [sic] to be a fun place to work but there is now a
heavy dark cloud surrounding the environment at Xircom," one
message said.
The company issued the subpoena in May as a step toward
suing the critic for defamation and breach of contract. On
Monday, Hunter quashed the original subpoena on procedural
grounds, finding that it was issued before the defamation suit
was served. But he allowed Xircom lawyers to serve another
subpoena on Yahoo and a second subpoena on an unidentified
party whom lawyers said might know the identity of the
defendant.
Lawyers for the defendant, who is named in court filings as
"John Doe," said they planned to appeal the decision.
Xircom, a manufacturer of modems and other computer
products based in Thousand Oaks, Calif., employs about 1,100
people and reported sales of $276 million in the 1998 fiscal
year.
David Jacobs, a lawyer for Xircom, said the managers of the
company are taking the online criticism "very seriously."
"We don't know who they are, and we're trying to find out," he
said.
He added that "the statements made were not the kind of
chit-chat that usually flies around the Internet."
Megan Gray, the anonymous critic's lawyer, said the company's
defamation suit is frivolous and was filed only so that the
company could learn the identity of her client.
"It's only being filed to chill the
speech of John Doe and other
individuals," she said.
Court documents filed by Gray
say that the critic is not an
employee of Xircom.
The case has attracted attention
because, unlike other online
critics whose identities have
been revealed through the
courts, Xircom's critic is fighting
for the right to remain
anonymous.
"The issue of the right to anonymity hasn't been presented so
far," said David Sobel, general counsel for the Electronic
Privacy Information Center, a nonprofit Internet policy group in
Washington. "The ability to communicate anonymously has
been one of the great attractions of the Internet."
Sobel said that the legal battle over the Xircom subpoenas
could help establish that a company seeking the identity of an
anonymous critic must have a legitimate case against the
individual. In other recent cases, he said, once the companies
learned the identities of the critics through subpoenas, they
dropped the cases against them.
"That is going to be a very significant precedent, and will
hopefully do a lot to eliminate the possibility of abuse," he said.
In February, Raytheon Co. sued 21 "John Does," accusing them
of discussing rumored mergers and acquisitions, impending
divestitures and possible defense contracts on a Yahoo
message board.
Nearly all of the individuals turned out to be employees. A few of
them quit when they were unmasked, and the rest were sent to
"corporate counseling." After learning their identities, Raytheon
asked the court to drop the case.
Sobel noted that in the Internet world of free-flowing discussion,
corporations have an opportunity to easily defend their positions
without resorting to litigation.
"Xircom has an equal opportunity to post a correction," Sobel
said. "That's the enlightened way to handle the issue."
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