Overview
By Jarrod F. Reich
Contributing writer
One of the greatest free-speech advantages the Internet
provides is the ability to broadcast material from all over
the world to all over the world. It is unlike
pamphleteering in that one can disseminate his or her
grievances, concerns or other beliefs to a potentially
unlimited audience. Indeed, the Supreme Court in Reno v.
ACLU (1997), said that, by using the Internet, ?any person
with a phone line can become a town crier with a voice that
resonates farther than it could from any soapbox.?
Anonymity is also an option for the Internet user on a Web
site, newsgroup, chat room, Web log or message board. And
with anonymity may come an increased willingness to
criticize ? other people, corporations, public officials,
universities ? and increased boldness in doing so. When
online criticism (anonymous or not) strays over the line
into libel, a lawsuit may result.
A lawsuit over an alleged libel that happened to occur
online would proceed like any other libel action (see Libel
& defamation topic in Press section) if the accused were
known and named. But when the alleged libeler is anonymous,
the offended individuals, corporations or other entities
may try to smoke out their critics ? and, they hope,
suppress their criticism ? by filing what have been called
cyber-SLAPPs. ?SLAPP,? coined by the University of Denver?s
Political Litigation Project, stands for ?strategic lawsuit
against public participation.? (See SLAPP topic in Petition
section.)
The target of an anonymous online attack typically files a
lawsuit against a ?John Doe? defendant and then attempts to
discover John Doe?s identity. This is done through
subpoenaing the Internet Service Provider (or ISP, such as
like America Online or Earthlink) to reveal the identity of
the person who posted the offending material.
In the relatively few cases involving anonymous online
libel, courts have dismissed the lawsuits and/or have
refused to have the identity of the anonymous critic
revealed.
The seminal (and only federal) case on this issue is Doe v.
2TheMart.com, Inc. In this 2001 case, shareholders of
2TheMart.com filed suit against the company amid
allegations of fraud. Some of the disgruntled shareholders
made their discontent known by posting messages critical of
2TheMart.com on Internet bulletin boards. The bulletin
boards were created and maintained by InfoSpace, an ISP to
which these shareholders subscribed. The messages, one of
which referred to officials of 2TheMart.com as ?lying,
cheating, thieving, stealing lowlife criminals,? were
posted anonymously or by people using such pseudonyms as
?Truthseeker,? ?Cuemaster? and ?NoGuano.? 2TheMart.com
responded by presenting a subpoena to InfoSpace in an
attempt to obtain the identities of these people.
A U.S. District Court in Washington state allowed NoGuano
to object to the subpoena (as ?John Doe?) and the court
sustained the objection. The First Amendment, said the
court, protects the anonymity of Internet speech. It called
anonymous speech a ?great tradition that is woven into the
fabric of this nation?s history,? and added that ?the
ability to speak one?s mind on the Internet without the
burden of the other party knowing all the facts about one?s
identity can foster open communication and robust debate."
?People who have committed no wrongdoing should be free to
participate in online forums without fear that their
identity will be exposed under the authority of the court,?
the district court said.
2TheMart.com argued that the right to speak anonymously did
not create any corresponding right to remain anonymous
after speech. Once Truthseeker and his cohorts made public
accusations, the company said, they had to own up to them,
their identity became fair game, and the company had the
right to know who its accusers were.
But the court disagreed, warning that ?if Internet users
could be stripped of [their] anonymity by a civil subpoena
... this would have a significant chilling effect on
Internet communications and thus on basic First Amendment
rights . ... Unmeritorious attempts to unmask the
identities of online speakers have a chilling effect on
Internet speech.?
The court devised a strategy to balance the interests in
protecting a party?s online anonymity with preserving an
opposing party?s right to sue for libel if warranted. The
ruling announced a four-part test, such that the identity
of an anonymous Internet user could be disclosed if: ?(1)
the subpoena seeking the information was issued in good
faith and not for any improper purpose; (2) the information
sought relates to a core claim or defense; (3) the
identifying information that is directly and materially
relevant to that claim or defense, and (4) information
sufficient to establish or to disprove that claim or
defense is unavailable from any other source.?
Applying this test to the facts before it, the district
court denied the issuance of the subpoena, concluding that
2TheMart.com?s real purpose in seeking it was to intimidate
its critics into silence.
Other online-libel issues
In May 2003, The Associated Press reported that the North
Dakota Supreme Court upheld a $3 million libel verdict
against a former University of North Dakota student accused
of using an Internet site to spread lies about a UND
physics professor.
Glenda Miskin, of Crookston, Minn., argued that a North
Dakota court did not have jurisdiction over her Web site
because its content was not "directed uniquely to the state
of North Dakota." The state's highest court disagreed, in a
unanimous decision written by Chief Justice Gerald
VandeWalle.
Miskin's Web site included links to articles about UND
issues and staffers, VandeWalle wrote, along with items
about physics professor John Wagner and Wagner's attorney,
William McKechnie. And the state chief justice said that in
any case, a North Dakota court could assert jurisdiction
over Miskin personally because she lived in North Dakota
when many of the allegedly defamatory incidents occurred.
Miskin is a former UND student. She took a physics class
from Wagner in the fall of 1998, but was suspended from
school the following year after a university
student-relations committee concluded she was stalking and
harassing Wagner. Miskin contended she and Wagner exchanged
a number of sexually explicit e-mail messages. Wagner
denied Miskin's claims.
Wagner sued Miskin in June 2000, arguing she was trying to
ruin his reputation and interfere in his business
relationships. In April 2002, a jury awarded Wagner $3
million in damages, which the state Supreme Court upheld in
2003.
In June 2003, a three-judge panel of the 9th U.S. Circuit
Court of Appeals addressed the question of whether "a
moderator of a listserv and operator of a website who posts
an allegedly defamatory e-mail authored by a third party
can be held liable for doing so."
In the case, Batzel v. Cremers, a defamatory e-mail message
was sent to a Web-site operator, who edited the message and
selected it for posting. The operator said he believed the
sender intended the message to be made public. The sender,
however, later claimed that he never intended the
information to be made public; he merely wanted the site
operator to be aware of it.
The 9th Circuit panel, relying on a federal law that
immunizes "providers and users of interactive computer
services" from liability for libel, held in a 2-1 decision
that the operator's editing and selection of the e-mail
message did not place the operator outside the statute's
protection. The divided panel also concluded the operator
could not be liable if he reasonably believed the sender
intended for the message to be posted.
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