ONLINE SPEECH
Posting an unsigned flame about your company to an online message board may feel good, but it has become downright risky. Anonymous posters - whether disgruntled employees or pissed-off investors - are increasingly likely to be sued for libel by image-conscious companies.
Suits against anonymous chat room posters ballooned from just a handful a few years ago to more than 100 cases in 2000, according to Ann Beeson, a national staff attorney in the New York headquarters of the American Civil Liberties Union. Many of the suits, contends Beeson, are frivolous attempts to stifle free speech. Often, the plaintiffs - usually small to midsize companies - issue subpoenas seeking a chat room poster's identity before filing suit, a tactic meant to quell employee or investor dissent.
"The vast majority of these suits are being filed not because the corporations ever expect to recover any money, but solely for the purpose of shutting up their critics," says Beeson.
"You've got small investors who can't really afford to defend their cases once they're identified," says Paul Levy, an attorney at Public Citizen, which, like the ACLU, defends libel cases involving John and Jane Does. "So the identification is the end of the case."
Many civil libertarians believe that existing laws do not sufficiently protect free speech in chat rooms; indeed, courts are still trying to deal with the unique problems these latest cases pose. In 1997, the US Supreme Court ruled that Internet speech should be given the same protection as speech in any other medium. But many ISPs willingly respond to subpoenas seeking the identity of anonymous posters, and some provide it without notifying the end user.
Last year, a John Doe known as Aquacool_2000 sued Yahoo! for doing just that, and the case was quickly settled out of court. In February, privacy advocates went to court in San Jose to protect the identities of two anonymous posters to a Yahoo! chat board.
An informal task force that includes the ACLU and the Electronic Frontier Foundation may seek legislation to require ISPs and message-board hosts to provide fair notice so subscribers can respond to subpoenas before their identities are disclosed. The group is also urging these hosts to set standards voluntarily.
A tougher issue, believes Beeson, is deciding when it's legitimate to disclose a poster's identity. Under defamation laws, the plaintiff must prove the defendant not only made a false statement, but did so with malicious intent. To prove intent, the defendant has to be deposed - tough when he or she is anonymous. The ACLU wants courts to require plaintiffs, before any disclosure, to show that a law may have been broken and to prove that they suffered actual economic injury.
Defense attorneys are fighting back further by invoking statutes in a dozen states that let defendants sue accusers they prove are filing suit solely to silence them; the new rules would allow defendants to recover damages and attorney fees. Says Beeson: "It could be a very powerful way to stem these lawsuits."
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