Re: 12/19/00 - Law.com: Unmasking Internet Bad-Mouths; Plaintiff's right or First Amendment wrong?
Unmasking Internet Bad-Mouths
Plaintiff's right or First Amendment wrong?
Thomas Scheffey
The Connecticut Law Tribune
December 19, 2000
Cummings & Lockwood partner Timothy G. Ronan may not yet know the identity of the Webmaster who goes by the screen-name "rnn.sucks" -- but on behalf of TV station client WRNN, he's making great headway.
The Stamford, Conn., lawyer filed court papers against giant Yahoo! Inc., seeking an order instructing Yahoo to disclose who runs the RNNSUCKS Web site on its Geocities Web community. On Dec. 7, Stamford Superior Court Senior Judge John J.P. Ryan granted Ronan an order to begin discovery into who is behind the so-called cybersmear site.
His client WRNN is a television station that broadcasts to western and central Connecticut and eastern New York from Kingston, N.Y.
All the writing on the RNNSUCKS Web site is anonymous, but the vitriolic nature of their comments make it apparent that present or former employees of the station are highly critical of its present and past operations. They have found a way to give voice to their discontent in a very public -- if anonymous -- manner.
Ryan's bill of discovery, a bid for pre-lawsuit information, says that on the site's home page, "Webmaster stated that his or her goal in creating the Web site was to drive the owners of WRNN out of the TV business."
On the site and in an accompanying message board, the unknown Webmaster and others have posted messages "which contain derogatory, false and libelous statements about WRNN and certain of its executive officers and on-air personalities," the TV station claims.
The seven-page pleading doesn't set out the alleged defamation, but a check of the site shows it to be a pungent mix of venom and dirt. It gives a history of the station's various owners, and how the station has changed focus and objectives over the years. News directors' quick careers are reviewed -- sometimes scathingly -- and the business wisdom of the station's owners is openly questioned.
Before Ryan's order, Yahoo had flatly refused to divulge the identity or identities of those who run the Web page. Its lawyer, Jeremy Feigelson of New York's Debevoise & Plimpton, declined comment, pending client authorization.
The case highlights a new and controversial issue confronting business, the law of the workplace and free speech, defining the line between legitimate expression and illegal speech online. It has attracted attention from Public Citizen Litigation Group, a Washington, D.C. law group founded in 1971 by Ralph Nader.
Ronan's November 27 action came one day before a New Jersey chancery court judge issued an extensive ruling on a similar action that received national attention. The New Jersey suit was filed against four "John Does" maintaining a Yahoo Web site critical of Dendrite International, Inc., a Morristown, N.J. pharmaceuticals company.
The Dendrite action claimed that the Does, if employees, are violating an employment contract provision. It also lists specific dates in April when postings by the Does coincided with drops in the stock value of 7 percent to 11 percent.
Judge Kenneth C. Mackenzie, in an innovative act, had Yahoo give the posters notice of the court action on the Web site, allowing them to come into the action anonymously and preserve their rights, through counsel. Two did.
In his legal analysis, Mackenzie said probable cause must be shown to protect against the use of out-of-court procedures to invade the privacy of a person who has done no wrong.
In the New Jersey case, Public Citizen's Paul Alan Levy filed an amicus curiae brief which proposed a three-part test before identities are revealed. First, Public Citizen recommended that plaintiffs be required to set forth the exact statements alleged to be illegal speech. Second, the court should analyze the statements to determine whether, on their face, they are too vague and insufficiently factual to be defamatory, or are simply legal expressions of opinion.
Finally, the court should balance the defendant's need for confidentiality with the seriousness of the plaintiff's case.
Before giving Dendrite any power to go after its alleged attackers, Mackenzie analyzed whether the company is a public figure. He concluded that, as a pharmaceuticals company, its product involves a legitimate public interest and cannot be considered everyday products or services.
Another thing weighing in favor of Dendrite being classed as a "public figure" is its ability to talk back. Mackenzie wrote, "Obviously, a corporation such as Dendrite would have access to channels of effective communication to rebut the allegedly defamatory statement at issue in the instant case."
Citing the 1999 federal case from the Northern District of California, Columbia Ins. Co. v. Seescandy.com, Mackenzie concluded that people should be able to participate in online discussions anonymously if they have done no legal wrong, and should be safe from those who would use court powers to harass or embarrass them with a frivolous lawsuit.
Mackenzie decided to protect the privacy of two of the four "Does" who came forward to assert their right to anonymity in court, but allowed Dendrite to begin discovering who the other two are.
Lawyers on both sides of the issue say that nationally, in the past two years, there have been more than 100 cybersmear cases where anonymous posters' identities were unmasked through court action.
Levy, of Public Citizen, says that trend has changed in the last six months, with courts occasionally ruling in favor of the anonymous defendants.
He said his group is weighing whether to become involved in the WRNN case. Said Levy, "As far as I know, there hasn't been any opposition" to releasing the names in the case before Judge Ryan.
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