A federal court ruling last week could make it much more difficult for companies to successfully sue chat-room posters for expressing their opinions. A Los Angeles judge dismissed a lawsuit last Friday that sought to collect damages from “John Does” who criticized the company anonymously on Internet message boards. Privacy advocates say the decision sets an important precedent in the fight to protect anonymous speech online.
A federal court ruling last week could make it much more difficult for companies to successfully sue chat-room posters for expressing their opinions.
A Los Angeles judge dismissed a lawsuit last Friday that sought to collect damages from “John Does” who criticized the company anonymously on Internet message boards. Privacy advocates say the decision sets an important precedent in the fight to protect anonymous speech online.
The ruling on the case — Global Telemedia International vs. Does — found that the chat-room banter posted by the defendants were statements of opinion, not fact. Electronic privacy experts say that distinction sets an important legal precedent.
“The ruling is significant,” said David Sobel, an attorney for the Electronic Privacy and Information Center (EPIC), who has been deeply involved in the battle to protect anonymous speech online. “It is a judicial recognition of the fact that the vast majority of material posted to message boards constitutes opinion, and is thus protected under libel law.”
Helping the defendants in this case were indications that their criticisms couldn’t possibly have come from an authoritative source, thus couldn’t reasonably be assumed to have been anything but opinion.
“The postings (in question) are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corporate press releases or SEC filings,” Judge David O. Carter wrote.
According to the law in California and most other states, only statements a listener could interpret as fact can be libelous and merit damages.
To demonstrate his point, the judge cited a passage, posted by one of the defendants on Raging Bull (owned by Wired News parent Terra Lycos), for which GTMI sought damages:
“This company has put it up your arse again this week with no filing no nothin (sic) no chance to buy it off shore on international exchanges … stupid flippin puss I got info comin at you that will make you puke about this stock and then you can thank me.”
“To put it mildly,” Carter wrote, “these postings, as well as others presented to the Court, lack the formality and polish typically found in documents in which a reader would expect to find facts. It is unlikely, for example, that a corporation would express the view that investors should ‘up the volume for some of that 2 dollar love.'”
Besides protecting chat-room gossipers from damage claims, the ruling may also be an important advance in the drive to stop plaintiffs from using frivolous lawsuits as an excuse to subpoena ISPs for the identities of anonymous posters.
Identity disclosure subpoenas — and the suits behind them — are on the increase. In papers filed on Monday in another defamation suit involving anonymous online speech — Melvin vs. Doe — AOL said it had handled 475 such subpoenas last year.
Sobel calls these sort of suits “fishing expeditions.” In explanation, he pointed to one of the first and more-famous examples — a 1999 lawsuit Raytheon vs John Doe 1-21.
That lawsuit sought $25,000 damages from 21 “John Does” who had criticized the company in anonymous postings to Yahoo message boards. Raytheon said it feared the posters were employees acting in violation of company policy. Using its right to discover evidence for the case, it subpoenaed Yahoo and other ISPs, demanding the service providers identify the people who had criticized Raytheon.
Shortly after Yahoo handed over the names, Raytheon dropped the suit. At least four of the 21, including one VP, were Raytheon employees who resigned after being identified. Sobel called the tactic, now commonplace, “an abuse of the judicial system.”
“They just want to get the name, then use the suit to get the name,” said Nicole Berner, an attorney for Jenner & Block, referring to no case in particular, but the general trend.
Berner recently worked on a case that had the potential to set an important precedent of protection for anonymous speech. She helped four “John Does” fight to stay anonymous despite subpoenas submitted to Yahoo on behalf of the plaintiff in the suit, an ambulance company called Rural/Metro. Rural/Metro sought to collect damages for comments made on Yahoo message boards.
But as is commonplace in such cases, the defense’s hopes for establishing precedent were dashed when the plaintiff abruptly dropped the suit on Feb. 20, a few weeks before the trial date.
“What everyone agrees on, but hasn’t been legally established yet, is that in order to step on someone’s First Amendment rights, there needs to be way to figure out when the plaintiff’s rights outweigh the defendant’s right to remain anonymous,” Berner said.
Although the ruling on the Global Telemedia (GLTI) case did not explicitly establish that standard, she saw the ruling as a step in that direction.
Sobel agreed, saying the ruling would give “John Does” a better chance of getting identity disclosure requests quashed before their names are given out. In a recent policy change, most ISPs now notify users if their identities have been subpoenaed, allowing them a chance to respond before it’s too late. Yahoo typically gives two weeks notice.
“I would like to see a precedent requiring courts to consider the merits of a case before permission to subpoena identity is given,” Sobel said. “But we are still in the process of developing the law in this area, and this is a very thoughtful opinion that should have a significant impact on protecting anonymity.”
Author: Jeffrey Benner
News Service: Wired News