"Faced with ISP immunity, complainants will be left to pursue individual message posters. Anyone who thinks, however, that corporate plaintiffs will automatically win this game should examine the action filed by Itex Corp. of Portland, Oregon. Itex traded on the Nasdaq small-cap market until December 1998, when it was delisted. Itex operates an online exchange that lets customers barter goods using "trade dollars" instead of actual money. The company then makes a commission on each trade.
In September 1998 ITEX filed suit in Multnomah County Circuit Court against 100 John Does for offensive statements made on the Yahoo message board dedicated to the company. The complaint alleged defamation, conspiracy, and various forms of business interference. Itex Corp. v. Does 1 through 100, Civ. No. 98-09-06393. After identifying and serving four Does, Itex reached a quick settlement with one of them. But two other posters, one from California and the other from Colorado, filed pro se motions to dismiss the case for lack of personal jurisdiction. According to Itex attorney Stephen Pearson the trial court granted the motions after holding a telephone hearing with the pro se defendants.
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Itex has declined to appeal on the jurisdictional question. The company also has its hands full with the fourth Doe defendant. Oregon resident Les French, acting as his own lawyer, has filed an answer and a multicount counterclaim to the suit. French says he plans to hire counsel once he gets past the discovery stage. He also has upped the ante, posting his responsive pleading on the Internet at (www.lesfrench.com/legal) and founding a Yahoo chat group where renegade posters can share war stories and find support. The John Does Club meets every Wednesday evening at 9:00 PM Eastern time.
French, who says he held a vice president's position with Itex when the company was under different management, is determined to litigate the suit to the bitter end. He sees the case as a matter of principle, with the First Amendment squarely on the line. "These companies can't stand to be criticized in a forum that's comparable to the mass media," he says. "The miracle of the internet is that it empowers the common citizen." Poised atop French's home page is an inset quotation from Ralph Waldo Emerson: "Speech is Power: speech is to persuade, to convert, to compel."
French says Itex has offered him a mutual release of all claims, but he has little interest in an early resolution. "I will not walk away and pretend the whole thing never happened," he says. Trial is set for this month."
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