interactive.wsj.com
July 26, 2000
Public Citizen, ACLU File Briefs
To Restrict Cybersmear Suits
By AARON ELSTEIN
WSJ.COM
Two public-interest groups are attempting to raise the bar for the growing
number of companies that file lawsuits against anonymous online critics and
try to unmask their identities.
Public Citizen, a Washington consumer group
founded by Ralph Nader, and the American
Civil Liberties Union say companies should
be required to demonstrate economic harm
from the online postings before courts allow
them to use legal measures to find out the identities of their critics.
As part of a lawsuit, companies can easily subpoena online message-board
services, which usually comply with court orders to turn over information
that identifies posters. But Public Citizen and the ACLU have formally
weighed in on four cases, urging the courts to toughen the standards.
"A company should not be able to deny members of the public the right to
speak anonymously simply by filing a complaint and making vague
allegations of wrongdoing," Public Citizen said in a friend-of-the-court brief
filed last week in a case brought by Dendrite International, a Morristown,
N.J. software maker that is battling its online critics in court.
Public Citizen's brief in the Dendrite suit is its second in a cyberlibel case.
The organization also is considering filing a similar brief in another case, says
Public Citizen attorney Paul Levy. Similarly, the ACLU also has weighed in
on at least two cyberlibel cases. The actions come amid an escalation in
defamation lawsuits by companies against online critics.
For their part, lawyers who help companies fend off online critics resent the
involvement of Public Citizen and the ACLU.
"It certainly appears the free-speech zealots are getting more involved," says
Bruce Fischman, a Miami lawyer who has represented about a dozen
companies in cybersmear cases but isn't involved in the four cases where
Public Citizen and the ACLU have weighed in. "The Internet has become a
milieu for torching reputations of even the most respected companies,"
according to his firm's Web site (www.fhdlaw.com).
The position being taken by the ACLU and
Public Citizen could make it tougher for
companies to fight back against their online
critics. Many have been able to silence online
critics through cybersmear lawsuits that have
unmasked their identities. Blake Bell, a New York lawyer who tracks these
cases, says more than 20 companies have sued anonymous online critics in
recent months, bringing the total number of such lawsuits filed in the past
two years to at least 100. "There has been a flood, an avalanche, of these
suits in the past eight or 12 weeks," says Mr. Bell, whose firm has
represented many companies in suits against online critics.
Online forums, where people chatter about stocks and companies they love
or hate, are usually rambunctious. But attacks against companies and their
executives are often false and defamatory and can't be ignored, say
companies that have filed suits. To prove defamation, courts require
companies identify their critics. That leads companies to subpoena Yahoo,
America Online and other message-board services, which usually turn over
identifying information when presented with a court order.
Public Citizen's Mr. Levy says most companies don't intend to prove
defamation in court and instead seek to unmask their critics and pressure
them to settle. Even though more than 100 cases have been filed, Mr. Bell
says "very, very few" have ever gone to trial because few people can afford
to battle a company in court.
Ann Beeson, a lawyer for the ACLU, says companies shouldn't be allowed
to embark on an expedition to identify their critics until they have shown the
messages have hurt the company financially. "We are asking plaintiffs to
establish actual economic injury," she says.
But Mr. Fischman, the Miami attorney, says it isn't necessary to establish
financial damage in order to prove defamation. "The ACLU and Public
Citizen are asking the courts to rewrite defamation law," he says.
"Establishing how much money you've lost because someone has posted
defamatory statements about you that can be read around the world is not
necessary to establish that defamation occurred."
In the Dendrite case, the company believes one of the writers is an
employee who posted confidential information about company sales on a
Yahoo! Finance message board, according to the suit. The company says
the leaks "caused irreparable harm." It is seeking a court order banning
anonymous writers from posting defamatory messages. A hearing is
scheduled Friday in New Jersey Superior Court in Morris County.
Dendrite officials referred calls to outside counsel, Allegaert, Berger &
Vogel in Princeton, N.J., and Gibson, Dunn & Crutcher in New York.
Allegaert Berger didn't return calls Tuesday, and Gibson Dunn declined to
comment.
Public Citizen's brief in the Dendrite suit is its second in cyberlibel cases.
The group filed its first in May in a case brought by Thomas & Betts. The
Memphis, Tenn., electronic components maker earlier this year sued
unnamed persons, believed to be employees, alleging they posted defamatory
and confidential information on a Yahoo message board.
Meanwhile, the ACLU is helping represent an anonymous critic of J. Erik
Hvide, the former chief executive of Hvide Marine, a small Fort Lauderdale,
Fla., company. Mr. Hvide alleges that his online attackers played a role in his
being fired last summer, a few months before the company filed for Chapter
11 bankruptcy protection. The ACLU argued in a brief filed in February that
the case should be litigated without releasing the identities of the critics.
Yahoo and AOL have withheld revealing the critics while a judge is
considering the matter.
A second ACLU case involves a state judge in Pennsylvania who alleges
she was defamed online. Judge Joan Orie Melvin of the Pennsylvania
Superior Court sued her anonymous critics in March 1999 after they posted
messages on America Online saying that she lobbied Governor Tom Ridge
to appoint an unidentified lawyer as a judge. Alleging defamation, Judge
Melvin filed suit in Virginia, where America Online is based. The ACLU
argued in a brief filed last September that the allegedly defamatory critiques
were political expression and the writers' anonymity should be protected.
A Virginia judge quashed the Pennsylvania judge's subpoena, and the matter
has since been transferred to state court in Pittsburgh, where it is pending.
Write to Aaron Elstein at aaron.elstein@wsj.com. |
