Re: 7/12/01 - [DTRE] NJ Star-Ledger: Rulings a 'map' for free speech on Net
Rulings a 'map' for free speech on Net
07/12/01
BY GREG SAITZ
STAR-LEDGER STAFF
In what is believed to be the first decision of its kind by a higher court anywhere in the country, a state appeals court yesterday ruled a Morris County software company is not entitled learn the identity of an anonymous writer who posted critical messages on the Internet.
Internet free speech advocates hailed the ruling by the Appellate Division of Superior Court because it establishes a process for judges to follow in balancing someone's constitutional right of anonymous speech with a company's right to protect its interests.
But the same three-judge appellate panel applied its newly devised procedures in a companion case and issued a separate ruling yesterday ordering that the name of another anonymous Internet message poster be revealed.
In the first case, Dendrite International of Harding sued four anonymous message writers last year, accusing them of defamation and other charges for postings on a Yahoo! finance message board. The company subpoenaed Yahoo! to reveal the posters' real identities, a process that routinely had been used in the past.
But Superior Court Judge Kenneth MacKenzie in Morristown issued a ruling in November that prevented the company from learning the names of two message writers. His decision was one of the first in the country in which a judge sided with anonymous posters after balancing their rights with the merits of a defamation suit.
Yesterday's 31-page appeals court decision largely supported MacKenzie's ruling and set forth guidelines when courts are confronted with a request to compel an Internet service provider, or ISP, to reveal the identity of an anonymous message poster. Those steps include making efforts to notify the anonymous posters of the request, requiring the company or person suing to provide evidence supporting their claims, and balancing business interests against a person's anonymous free speech rights.
"It's a road map for the courts and also a road map for plaintiffs if they want to go forward with cases," said Paul Levy, an attorney with the public interest group Public Citizen, who argued before the appeals court in support of the anonymous poster. He said Yahoo! and other Internet service providers have received thousands of similar subpoenas.
"It lays out a very clear, unambiguous standard," he said. In a news release, Levy called the appeals court opinion "an important precedent protecting the free speech rights of all Internet posters."
Dendrite attorney Michael Vogel, through an associate, declined to comment yesterday. Earlier in the year, the company won a court fight to learn the identity of two of the four anonymous message writers and amended its lawsuit in February naming two former Dendrite employees.
Although the Appellate Division ruling is binding only on lower courts in New Jersey, those who track so-called cyber-smear lawsuits said judges around the country probably will look to it for guidance.
"I think it will have a very material impact," said Los Angeles attorney Megan Gray, who in the past couple of years has represented about 20 anonymous message posters seeking to remain nameless. "The court has clearly spent a lot of time looking at this and has issued a definitive statement about what should be done in these type of cases."
The other case decided yesterday involves the Morris Plains biotech company Immunomedics Inc., which last year filed a complaint against someone who posted messages on a Yahoo! message board using the pseudonym "moonshine_fr." The company claimed the postings contained confidential and proprietary information, and suspected the writer was a female employee in France.
In December, Superior Court Judge Barbara Zucker-Zarett sided with Immunomedics, and the appeals court agreed yesterday that the company had provided sufficient proof that it had been harmed. Company attorney Nicholas Stevens said his argument was that certain speech isn't protected, a contention the appeals court also agreed with.
"Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged," the Appellate Division ruling said. "Individuals choosing to harm another or violate an agreement through speech on the Internet cannot hope to shield their identity and avoid punishment through the invocation of the First Amendment."
Attorney Steven Stein, who represents "moonshine_fr," said he probably will appeal the decision to the state Supreme Court.
Greg Saitz is a reporter in the Morris Bureau. He can be reached at gsaitz@starledger.com or (973) 539-7910.
--------------------------------------------------------------------------------
© 2001 The Star-Ledger. Used by NJ.com with permission.
nj.com |
