Re: 11/29/00 - [DRTE] NJ Star Ledger: Judge affirms privacy on Net
Judge affirms privacy on Net
11/29/00
BY GREG SAITZ
STAFF WRITER
In a closely watched legal case regarding privacy rights on the Internet, a judge has ruled that a Morris County software company is not entitled to learn the identities of two people who anonymously posted critical comments on a Yahoo message board.
"Victory for anonymity on the Net," said attorney Randy Pearce, who represented one of the four "John Does" whose identity Dendrite International sought to discover so it could pursue a defamation and trade secret lawsuit against them.
In a 22-page opinion released yesterday, Superior Court Judge Kenneth MacKenzie upheld the anonymity of Pearce's client and one other message poster. But the judge ruled Morristown-based Dendrite can subpoena Yahoo for the real names of two other message writers who did not contest the legal action.
National privacy-rights groups have been following the case since it was filed in May. Although dozens of companies have sued those who posted anonymous Internet messages, the Dendrite case garnered significant attention.
That's because it apparently was the first case in New Jersey and one of only a few in the nation in which a judge was asked to decide whether a company could learn the true identities of message posters who used pseudonyms. In other cases, Internet companies have complied with subpoenas without ever notifying the targets their names were being disclosed.
Yahoo, which used to routinely divulge members' names without notifying them when faced with a subpoena, changed its policy in April. Now, the company notifies members about such requests by e-mail and gives them 15 days to object, a spokeswoman said.
In the four months since attorneys argued their positions at a hearing, at least two other cases with similar facts -- one in New Jersey and one in Pennsylvania -- have been decided in favor of those suing to learn message writers' identities, said Paul Levy, an attorney with the public interest group Public Citizen.
"This is the first time I'm aware of that, after making the analysis, he (the judge) came to the conclusion there are some identities that are simply not going to be revealed," said Levy, who filed a friend of the court brief in the case opposing Dendrite's request.
"People who don't violate the law ought to be able to speak anonymously," he said.
Levy said the judge performed a thorough analysis of the critical issues involved in determining whether the anonymous Internet message posters stayed within the boundaries of protected free speech or crossed over to violate the law. He and the other attorneys opposing Dendrite's request said companies increasingly use lawsuits in an attempt to silence views they don't like.
Dendrite attorney Michael Vogel could not be reached for comment last night.
Dendrite, which makes sales and marketing software for the pharmaceutical industry, alleged in its complaint that some of the messages posted by the four "John Does" included proprietary and confidential information. The company charged that other messages were defamatory, and some were written by employees or former employees who are bound by contracts prohibiting them from making disparaging remarks.
But the judge, who reviewed the merits of each accusation, said Dendrite did not give him enough evidence to conclude that Pearce's client, known only as "gacbar," and another poster identified as "xxplrr" made defamatory statements or did anything unlawful.
"The Internet has become a forum for vast discussion reaching many individuals with diverse backgrounds and opinions," MacKenzie wrote in his ruling. ". . . These four individuals were utilizing that forum to voice their opinions and engage in discussion regarding issues important to them. They were doing so under the protection of anonymity, which . . . encourages the free flow of ideas. Allowing this protection to be stripped away would stifle that free discussion."
The judge went on to note, however, that false messages -- especially on financial boards -- could cause a great deal of harm. And in the Dendrite case, he said some of the messages "could easily be considered defamatory."
But in the final analysis, MacKenzie wrote, the company failed to prove the messages were harmful, despite Dendrite's claim that its stock price suffered as a result of the postings. "Saying it is so does not make the alleged harm a verifiable reality," the judge wrote.
MacKenzie's ruling now allows Dendrite to move forward with its efforts to find out the names of two John Does, "ajcazz" and "implementor_extrodinaire," who claims to be from Morristown. But the judge noted in his opinion he didn't assess the case against them and would not unless the two asserted their rights.
Greg Saitz is a reporter in the Morris County news bureau. He can be reached at gsaitz@starledger.com or (973) 539-7910.
© 2000 The Star-Ledger.
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