Re: 7/12/01 - [IMMU/DRTE] Asbury Park Press: Free speech curbed on Web
Free speech curbed on Web
Published in the Asbury Park Press 7/12/01
THE ASSOCIATED PRESS
TRENTON -- A state appeals court yesterday ordered Yahoo to produce Moonshine.
That's the fictitious name of an Internet user who disclosed company secrets on a message board.
When you register with an Internet Service Provider, or ISP, such as Yahoo and you select a fictitious name, you expect the ISP to keep your identity private.
But the three-judge appellate panel yesterday set down the legal rules to be followed in New Jersey to govern when this wall of secrecy can be pierced.
The American Civil Liberties Union and Public Citizen, a Washington-based watchdog group, issued a news statement yesterday proclaiming the New Jersey ruling to be the first in the nation by a state appeals court.
The court agreed with Immunomedics Inc. of Morris Plains that "Moonshine," whom they suspect is a disgruntled employee, had revealed internal information about international business arrangements and violated secrecy agreements signed by all employees.
In a companion case, the court rejected a similar demand from Dendrite International of Morristown because the firm failed to show it had been harmed.
Yahoo provides financial sites for each publicly traded company. These sites feature bulletin and message boards in which visitors with fictitious names can post messages and conduct sentence-by-sentence conversations.
Moonshine posted messages late last year informing Internet readers that Immunomedics, a producer of medical diagnostic and treatment equipment, was low on stock in Europe and that its manager of European sales would soon be fired. Moonshine was identified as a "female" and as a "worried employee."
The firm served a subpoena to Yahoo in October demanding Moonshine's identity. The court said part of what made the case strong was the fact that, according to company executives, the information was correct.
Yahoo transmitted the subpoena confidentially to Moonshine, who retained a lawyer to fight the disclosure, claiming the First Amendment's free speech protections included anonymous messages on the Internet.
The ACLU and Public Citizen in their joint statement highlighted the Dendrite case in which its attorneys and those representing the anonymous Internet user prevailed. The three-page news release devoted one paragraph to Moonshine's lost cause.
Both opinions were written by Judge Robert Fall on behalf of a unanimous three-judge panel.
In the Dendrite case, Fall stipulated that people or companies seeking to identify the author of anonymous Internet messages must first post a message warning them a subpoena is being issued, must specify the offensive messages and must document a basis for a lawsuit for financial losses, defamation or contract violations.
"Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged," Fall wrote. "Individuals choosing to harm another or violate an agreement through speech on the Internet cannot hope to shield their identity and avoid punishment through invocation of the First Amendment."
Public Citizen lawyer Paul Levy said the standards to guide lower court judges in these cases was a crucial achievement. He said ISPs like Yahoo have been confronted with thousands of subpoenas.
"Because it sets forth strict procedural and evidentiary standards for compelled identification, and then shows that these standards can produce real protection for anonymity, this decision is a tremendous victory for free speech," Levy said in a news statement.
The ACLU said the Moonshine case was unique because of compelling evidence she was an employee of Immunomedics and therefore by definition had broken legal agreements to preserve company confidences. This gave Immunomedics a legitimate breach of contract complaint.
Dendrite, a large pharmaceutical manufacturer with operations in 21 countries, claimed nine messages posted in 1999 by someone using the fictional identifier "Xxplrr" damaged them by reporting the company was inflating its revenues and looking for a buyer.
© copyright 2001 The Associated Press
Published on July 12, 2001
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