Re: 7/12/01 - [DTRE] Bergen Record: Court ruling protects online anonymity
Court ruling protects online anonymity
Thursday, July 12, 2001
By KEVIN G. DeMARRAIS
Staff Writer
Internet message-board users can retain their anonymity, even when posting defamatory messages about their employers, but not if doing so violates confidentiality agreements, a state appeals court ruled Wednesday.
In a pair of decisions that consumer groups say could become a national standard for online privacy, the court ruled that constitutional free speech provisions generally protect an individual's right to speak anonymously on the Internet.
But that right is not absolute and can be forfeited if the person reveals proprietary information about a company after signing an agreement not to do so, the court said.
The rulings, involving two Morris County companies seeking to force Yahoo to reveal the identities of individuals who posted negative messages, are the first of their kind in the nation.
They pertain only to New Jersey, but because the court thoroughly analyzed the constitutional rights involved and set strict procedural and evidentiary standards, the rulings are "likely to be especially influential in future cases," said Paul Levy, an attorney with Public Citizen, a Washington-based consumer watchdog organization.
Levy hailed the decision as "a tremendous victory for free speech."
Public Citizen joined the American Civil Liberties of New Jersey Foundation in asking the court to keep the identities private.
In its decisions, written by Judge Robert A. Fall, the three-judge panel said courts must consider and decide "by striking a balance between the well-established First Amendment right of an individual to speak anonymously, and the right [of a company] to protect its proprietary interests and reputation."
To achieve the balance, a plaintiff must document a basis for a lawsuit for financial losses, defamation, or contract violations, Fall wrote.
"Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged. 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," Fall wrote.
In one decision, the judges upheld a trial court's ruling that Yahoo did not have to reveal the identity of the person posting defamatory message-board statements about Dendrite International Inc., a Morristown company that supplies software products and support services to the pharmaceutical industry.
The court then used its Dendrite decision as the basis for ruling that Yahoo was required to reveal the identity of a woman who posted anonymous messages about Immunomedics, a Morris Township biopharmaceutical company.
Yahoo provides sites, including message boards, for each publicly traded company. The company says more than 200 million individuals use its services each month, with hundreds of thousands of messages posted daily, a spokeswoman said.
With Yahoo releasing its quarterly earnings report Wednesday, no one from the company was available to comment on the court decision, the spokeswoman said.
In its privacy policy, the popular Internet service provider says it "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."
The defendant in the Dendrite case, identified on Yahoo as "xxplrr" and in court as "John Doe No. 3," commented on reported changes in the way the company reported its revenue and that Dendrite's president was seeking someone to buy the company, statements the company said were not true.
In rejecting the company's attempt to find John Doe's identity, the court said the company had failed to show that it had suffered damages attributable to the messages. On five of the eight days the defendant posted messages, the value of Dendrite stock increased and it went down three times.
Dendrite had no comment on the ruling, said Erik Kopp, its public relations manager.
In the Immunomedics case, defendant Jean Doe -- known as "Moonshine" on the Yahoo boards -- is suspected to be an employee, each of whom sign confidentiality agreements.
She posted messages in October saying the company was out of stock in Europe and that its European sales manager would soon be fired. In this case, the information was correct, Immunomedics said in court.
Though disappointed with the court's ruling, Levy said the decision doesn't detract from the standards the court established in Dendrite.
"People shouldn't have the opportunity to hide behind their anonymity," he said. By emphasizing a balance of interests and a balance of rights, the court "crafted a very reasonable middle ground."
Immunomedics had no comment, spokeswoman Lori Baldwin said.
* * *
Following are the rules set down in Dendrite International Inc. vs. John Doe, released Wednesday, on how people or companies may require an Internet service provider to produce the identity of an anonymous user.
The person or company must post a warning on the Internet message board where the alleged offenses occurred to notify the anonymous user a subpoena or court action is being taken.
They must allow proper time for the Internet user to retain a lawyer and file a response to oppose disclosure.
They must list the precise messages posted or transmitted on the Internet, and show how they can be the basis for a lawsuit because they cost them money, damaged their reputation, or broke a contract.
They must show they are filing a lawsuit against the Internet user.
Lastly, trial judges who issue disclosure orders must strike a balance between the Internet user's free speech rights and the person or company's rights to pursue a lawsuit.
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Staff Writer Kevin G. DeMarrais' e-mail address is demarrais@northjersey.com
Copyright © 2001 North Jersey Media Group Inc.
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