Re: 5/28/00 - The fight to speak their mind, anonymously
The fight to speak their mind, anonymously
Online "posters'' say they're just expressing opinions. Companies say some of those opinions are damaging, and they are determined to unmask identities. One did, and now Yahoo faces legal repercussions.
By ROBERT TRIGAUX
© St. Petersburg Times, published May 28, 2000
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Nicholas Financial chairman Peter Vosotas wants to sue the pants off the person who last fall posted malicious information about his Clearwater car-finance business on a Yahoo message board. The problem is he doesn't even know the name of the online mud thrower identified only as blastem_1999. "It's like someone in a crowd threw a bottle at us," Vosotas says. "We want to know who did it."
Join the club. Across Florida and nationwide, corporations in droves are filing "John Doe" lawsuits -- so named because they are filed before the real name of the defendant is known -- to unmask online naysayers. Companies deride as "cybersmears" the barbed remarks that appear on increasingly popular Internet message boards run by Yahoo, Raging Bull, Silicon Investor and America Online.
Now, the John Does are fighting back. In what is quickly emerging as a cyberwar over free speech, people posting remarks on corporate message boards are trying to protect their right to voice their opinions online and remain anonymous.
A few online posters have countersued to halt corporate lawsuits aimed at divulging their identities. Some posters have set up message boards (among them: johndoes.org to offer support for John Doe defendants and encourage discussion about free speech and the growing threat of being "outed" by subpoena. And groups such as the American Civil Liberties Union and the Electronic Privacy Information Center are starting to lend more support to the online posters.
Then there is Aquacool.
The Internet user, who adopted the online pseudonym Aquacool-2000, lost his job after posting remarks on a Yahoo-run message board about his Miami-based employer. This month, Aquacool filed a lawsuit accusing Yahoo Inc. of violating his privacy rights by illegally disclosing his identity.
Yahoo has long complied with lawsuits from corporate lawyers seeking the identities of unfriendly online message posters. The problem is, privacy experts say, Yahoo often divulged the names of people without telling them or giving them the chance to seek legal protection.
Aquacool's suit marks the first attempt to punish an Internet company for accommodating a company's legal request for a poster's real name.
Megan Gray, Aquacool's Los Angeles lawyer, said the right to express an opinion online and to do so anonymously is protected by the First Amendment and Supreme Court rulings.
"On the Internet, anyone can be a publisher or pamphleteer, and this is the ideal of democracy," Gray said.
Companies that gain the names of people who criticize them anonymously online often are little more than thin-skinned bullies, she said.
"Companies can use that information and online users may never even know it," Gray said. "If the user is an employee, he can be fired for poor performance or lose retirement benefits and never know why. If the user is not an employee, a company can use its influence to have that person terminated and he may never know what happened."
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Corporate message boards and stock chat rooms started as forums for investors to anonymously swap ideas and comments. They have gained an enormous following in the past two years, thanks in part to the booming stock market and consumers' embrace of the Internet. While many message boards perform their task well, others are full of rowdy remarks, juvenile insults and shameless stock boosterism.
Some boards are abused and fall prey to posters who try to manipulate a company's stock, typically by pushing up its price with misleading information, then selling the stock near its peak. The technique has a name: "pump and dump."
Nobody said the content of message boards is pretty. But online message boards and chat rooms dedicated to business are a young medium. And as a window on the closed corporate world, they offer an unusually democratic way to share information, including rumors and gossip, about companies and their stocks. Their defenders say it would be a shame for such a potentially useful exchange to wither from the constant threat of litigation.
"Yahoo has pursued a policy of disclosure without accountability, making no effort to protect chat-board users," said David Sobel, general counsel of the non-profit Electronic Privacy Information Center in Washington. "If people are not assured of anonymity online, it will have a chilling effect on their speech."
One problem is that companies have found they can sometimes silence critics with subpoenas, which are issued by lawyers and don't have to be approved by a judge.
At the least, the suits are embarrassing for Yahoo and America Online, which advertise themselves as forums for free speech.
The rising tide of legal disputes makes it clear the rules governing message boards about publicly traded companies are still being written, St. Petersburg lawyer Patrick Calcutt says.
Calcutt recently represented a Florida doctor, Norman Friedman, who was sued under his online pseudonym, coolhl7, after posting comments on message boards critical of his employer, health care provider Phycor Inc. After Friedman was identified by Phycor, the case faded away. But Calcutt worries this is only the beginning.
"I see a trend by companies to squash anything negative said about them," he said. "Now there is a backlash by people who thought they were anonymous online but got exposed. Now they are mad at the (Internet service providers) like Yahoo, and I think there is some merit in that."
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Aquacool_2000 launched his counterattack May 11, filing suit against Yahoo for invasion of privacy and breach of contract because the Web portal gave his name and other details to his employer, Miami's AnswerThink Consulting Group.
AnswerThink had sued several anonymous message writers in Florida for defamation in late February after its stock drooped and its managers got trashed on the Yahoo message board. When the company's lawyers fired off subpoenas to Yahoo demanding the real name of Aquacool and others, Yahoo quickly complied.
When AnswerThink learned Aquacool worked for the company, the employee was fired without payment of an expected cash bonus and just before a large block of stock options was to vest.
How nasty were Aquacool's online postings about AnswerThink's managers?
The lawsuit against Yahoo quotes one of his messages. He called one of his employer's managers "an arrested adolescent whose favorite word" is a schoolyard expletive. "One is so dull that a 5-watt bulb gives him a run for the money," Aquacool added. "And the third believes that the faster you go in your car, the smarter you get."
Aquacool's online comments read like high school graffiti, mild stuff given some of the remarks on Yahoo boards about poorly performing companies. Corporate executives routinely are described, by name, as dunces, crooks and worse.
Gray, Aquacool's attorney, said Yahoo's actions in revealing her client's name violate his right to privacy as well as assurances of anonymity Yahoo makes on its site. Aquacool is seeking unspecified monetary damages.
Yahoo won't comment on the lawsuit but cites its privacy policy: "As a general rule, Yahoo will not disclose any of your personally identifiable information except when we have your permission or under special circumstances, such as when we believe in good faith that the law requires it."
Yahoo said that last month it began notifying any users who are the target of a subpoena. Gray argues that is not enough. She wants a court order requiring Yahoo to formally change its privacy policy to guarantee a user has time to respond to a subpoena before his or her identity is revealed.
In Aquacool's quest to preserve online anonymity, here's a twist:
The real name of Aquacool is not revealed in the lawsuit. But other posters on Yahoo's AnswerThink message board have done their own analysis and posted the real name of an individual, an Ohio man, they think is Aquacool.
Florida companies take on posters
The volume of corporate lawsuits in search of the identities of online posters is escalating fast.
Yahoo and some other hosting companies of message boards are getting more than one subpoena per day. At such law firms as Foley & Lardner, which are big in representing companies on technology matters, corporate clients are clamoring for help in tracking down anonymous online posters.
Florida companies are especially aggressive. (See list.)
In the Tampa Bay area, a small company named Stampede Worldwide Inc. in mid-May sued Charles R. Will Jr. in Pinellas County Circuit Court for allegedly creating defamatory postings about the company and chief operating officer David D. Salmon.
Stampede president John Whitman said his company, formerly Chronicle Communications, did not want to sue but could find no other way to stop the postings on the Raging Bull message board.
"At a certain point, it has become obvious that without action by the company, Mr. Will will continue this behavior unchecked," Whitman said. Stampede was obligated to protect its shareholders, he said.
Will has yet to respond to the lawsuit but continues to post messages, Stampede attorney John Johnson said. No one answered telephone calls to Will's home.
In another case, Erik Hvide, the former chief executive of Fort Lauderdale's Hvide Marine Inc., sued eight anonymous posters after leaving the top job last summer. The company later declared bankruptcy. In a February court filing, Hvide said he was fired because of "malicious and intolerable defamatory statements" made on a Yahoo message board. Some of the posters maintain they were just expressing their opinions.
"This is a test of the capacity of ordinary people to make full use of the Internet," said Lyrissa Lidsky, a University of Florida law school professor, who argued Thursday in court for the ACLU and on behalf of the eight posters.
A Miami-Dade Circuit Court judge was not persuaded by Lidsky. Circuit Judge Eleanor Schockett ordered Yahoo and America Online to divulge the identity of an anonymous message writer, saying Hvide has every right to face his accuser.
"It sends the message, "You can have your say if it's responsible,' " the judge said. "Give them anonymity and nothing holds them back. That's why the Ku Klux Klan wears hoods."
On Wednesday, another company upped the ante against 14 John Does for online defamation by suing under the Racketeer Influenced and Corrupt Organizations Act. RICO, which carries the threat of triple damages against a losing party, originally was devised as a legal weapon against organized crime. Utah-based InvestAmerica Inc. claims the defendants are part of a conspiracy to post statements on Raging Bull'schat room that hurt the company's stock and accused the company's management of malfeasance.
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In the cyberwar of words, the "little guy" in an online defamation battle is not always clear.
At Clearwater's publicly traded Nicholas Financial, chairman Vosotas said he came so close to taking legal action against "blastem_1999" -- the poster whose message trashed the company last fall -- that he announced his intention to his company's 100 employees.
But Vosotas reluctantly put legal action on the back burner after speaking further with his attorneys. They warned it could take up to $15,000 just to subpoena Yahoo for the name of blastem.
"The cost was prohibitive without knowing if this guy was a Warren Buffett or some brain-dead a---," he said.
As for blastem, no one has posted a message by that name on the company board since November.
But Vosotas isn't just giving in. He has taken an unusual step as a corporate chief, posting his own messages as "PVosotas" when he thinks comments on the Yahoo message board are misleading or wrong.
After blastem first posted several messages in November, Vosotas responded online by correcting errors and threatening a lawsuit.
"Seriously Blastem_1999, I know that I'm probably taking a risk writing to a moron like you," Vosotas wrote, "but I've spent the last 15 years of my life and every penny I have is on the line with my company."
Since first learning last fall about message boards, Vosotas scans the Yahoo board at least once a day to keep up with a modest volume of comments. The executive is torn. While he wishes there were more messages online about his company to make it more visible to potential investors, he is no fan of a poster's ability to remain anonymous and pan the company or a person.
"To me, it's very dangerous," he said. "We should be able to know who is writing a note."
Pursuing online naysayers
Florida businesses are among the most active nationwide in suing anonymous posters on online message boards for allegedly defamatory remarks about their companies. A recent sampling:
Who Where What they do
Stampede Worldwide Inc., Tampa, publishing PC sales
SATX Inc., Tampa, technology acquisition company
Technical Chemicals & Products Inc., Pompano Beach, medical diagnostic products
Kellstrom Industries Inc., Sunrise, aircraft/engine sales and leasing
Sunbeam Corp., Boca Raton, household/leisure products
Hollywood.com, Boca Raton, online entertainment
Ocwen Financial Corp., West Palm Beach, financial services
CyberGuard Corp., Fort Lauderdale, computer security
Harbor Florida Bancshares, Fort Pierce, banking
Hvide Marine Inc., Fort Lauderdale, marine support, transportation
Quest Net Corp., Pembroke Park, telecommunications
Talk Visual Corp., Miami, video teleconferencing
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