Re: 3/14/01 - [TVCP] Johndoes.org: Court Grants John Doe The Process That Is Due
For Immediate Release: Contact: Nick Lindesay (530) 579-6078
March 14, 2001
Court Grants John Doe
The Process That Is Due
An Oregon federal magistrate rules that an anonymous “John Doe” internet message board poster does have the right to appear voluntarily to defend his reputation and to file counterclaims
PORTLAND, ORE.—The voluntary appearance of an internet message board poster has been upheld by a federal district court magistrate, who also granted leave to the “John Doe” defendant to defend and make counterclaims in an internet defamation lawsuit in which the plaintiff, Michael Zwebner, Chairman of Talk Visual Corporation (OTCBB:TVCP) has alleged $18 million in damages against the poster known anonymously as “InternetZorro” and against an internet web site provider, John Does Anonymous Foundation (“The Foundation”), which hosts the www.johndoes.org web site.
Mr. Nick Lindesay, a director of The Foundation, states that the case is unusual, in that when the poster InternetZorro revealed his true identity to the court and to the plaintiff, and voluntarily appeared and filed an answer, plaintiff Zwebner filed motions to strike InternetZorro’s pleadings and to block him from further participation in the lawsuit. It turns out that InternetZorro, whose real name is Les L. French, is also a director of The Foundation. Mr. Zwebner claimed that Mr. French had no right to defend, because a summons had not been served on him, and because the anonymous poster had not been identified by his true name in the lawsuit or in the case caption.
But Mr. French pointed out to the court that the plaintiff had, in fact, identified InternetZorro as “a John Doe defendant” and specifically identified InternetZorro’s posts as the allegedly defamatory comments which had been published on the www.johndoes.org web site. The court agreed. The Honorable Dennis Hubel, in making his finding, pointed out that even though no precedence for these unusual circumstances has previously been established in a federal court case, the appearance of Mr. French aka “InternetZorro” was proper under the Federal Rules of Civil Procedure and case law which permit a voluntary appearance even though a defendant is not identified in a complaint by his proper name. After denying Zwebner’s motion to strike Mr. French’s appearance, the court also allowed Mr. French’s motion to file counterclaims, including a claim of abuse of process, against TVCP’s Chairman, Mr. Michael Zwebner.
“Obviously, we are pleased with the court ruling,” stated Mr. Lindesay, “as it marks the first case we are aware of in a federal court in which the voluntary appearance of an anonymous defendant in an internet defamation case was ruled by the court to be proper. We have seen a number of these in various state courts.”
“It also sends a clear message to potential plaintiffs in these cases, most of whom are small-cap publicly traded corporations and their respective management, that they had better be prepared to face the consequences of bringing frivolous litigation against shareholders and otherwise harmless anonymous internet publishers who are exercising their First Amendment right to free speech.”
Mr. Lindesay concluded by stating that he expected a successful conclusion to Mr. Zwebner’s lawsuit against The Foundation, which he described as being “frivolous by its very nature. “In 1998 Congress passed the Communications Decency Act which exempts various internet service providers such as Yahoo!, AOL, and The Foundation, from liability from public content published by users or subscribers. This legislation is very sensible, and has been upheld by the federal courts in every case.”
In a related lawsuit filed by Mr. Zwebner against anonymous defendants in Massachusetts, including a defendant known on the internet as the_worm06, Mr. Zwebner earlier this week dismissed the lawsuit without prejudice. The case gained notoriety as a result of a series of press releases issued by Talk Visual Corporation and Mr. Zwebner highlighting the lawsuit. But the publicity backfired. In February, 2000, when TVCP and Mr. Zwebner originally filed suit, TVCP’s stock was at an all time high of $4.00 per share. On the day Mr. Zwebner dismissed the suit, his stock was trading at about six cents, a decline of 98% in thirteen months.
According to research conducted by The Foundation, thousands of “John Doe” defendants have been sued by small companies in over 200 cases during the past five years, with only a handful of the defendants actually ever being served. The Foundation is not aware of one single such case ever going to trial, or where the plaintiff has ever won a verdict or judgment. As in the Zwebner case in Massachusetts, most of these lawsuits are simply dismissed by the plaintiffs after they have used the process to intimidate, identify, and “unmask” the posters. In a recent Wall Street Journal interview, Mr. French stated that “most John Does don’t even know that they have been sued, because they are never served [or notified] regarding the lawsuit. Meanwhile, the plaintiff corporations typically have unbridled discovery powers to pry into the most intimate sources of information on the defendants, because the John Doe defendants are never served with a summons, and are therefore not given the opportunity to defend or to oppose discovery.”
In an unrelated lawsuit filed in California, a federal judge recently dismissed a “cybersmear” suit against anonymous posters on Raging Bull, under California’s anti-SLAPP (strategic litigation against public participation) statute, a ruling under which Global Telemedia International, Inc. (GLTI) will be required to pay a cash amount to the defendants in the form of “enhanced fees and costs” to cover the costs of their defense.
The GLTI case is also important because the court recognized that public opinions expressed on public message boards about publicly held companies like GLTI are protected speech under the First Amendment, and therefore the plaintiff (GLTI) could not demonstrate to the court a likelihood of prevailing on the merits of its claims. As a result, the case was dismissed in its early stages, and excluded any discovery being taken by GLTI on the anonymous defendants.
The John Does Anonymous Foundation is a non-profit organization dedicated to promoting free speech in the public interest, and to provide support to individuals who are being sued for freely expressing their opinions on the internet. The Foundation maintains a web site at johndoes.org . Organizations and individuals wishing to contribute to The Foundation to support its projects, or to contribute to the costs of its legal defense in the litigation described in this news release, should contact Mr. Nick Lindesay or Mr. Les French at (530) 579-6078, or send email to barter@johndoes.org .
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