The number of lawsuits for defamation relating to messages posted on Internet message boards is on the rise. Termed "cybersmear" suits, these actions consist of companies and executives fighting back against critics posting defamatory statements about them or their products and services on message boards. These message boards have been compared by some to the employee lunch room, or "water cooler talk." Online message boards not only allow these critics a large audience, but also allow them to remain anonymous. This anonymity is under threat by an increasing number of court decisions requiring Internet service providers to release the identities of these anonymous posters when they receive subpoenas.
A Florida appeals court decided in May that the Internet service providers America Online and Yahoo! must release the identities of people who posted defamatory messages on their message boards. In this particular case, a former shipping company executive said he was libeled by comments made on these message boards by anonymous posters. (America Online and Yahoo! were not defendants because of earlier rulings which held that they are not "publishers.") The court allowed subpoenas for the records of these service providers, which would reveal the identities of the posters. The plaintiff's attorney celebrated, stating that it would force Internet users to "think a bit before they speak."
In general, companies argue that they have a right to face their accusers. They claim that they are not trying to stifle online speech, but rather people must simply think before posting messages. While some messages may remain anonymous, those that make statements that are defamatory should be made to reveal their identities.
Opponents, including free speech advocates and civil liberties groups, argue that this is the end of uninhibited speech online. They are concerned that these suits will serve to silence the suffocation of the free flowing exchange of ideas on the Internet under anonymity. The Supreme Court has protected the right to speak anonymously under the First Amendment. See Talley v. California, 362 U.S. 60 (1960). In that case, the Supreme Court noted that requiring the speaker to reveal his or her identity would tend to restrict the freedom of expression. This decision was reaffirmed in McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511 (1995). Here, the court held that "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication is an aspect of the freedom of speech protected by the First Amendment."
An additional concern of these advocacy groups is the threat to privacy inherent in decisions allowing the release of online identities. In addition to providing just the poster's name and contact information, some service providers have been known to provide credit card numbers and a log of transactions on that person's internet account.
Advocacy groups also argue that the identity of the poster should remain anonymous until the plaintiff is actually able to prove the claim of libel. Companies and CEOs are trying to obtain the identities of the potential defendants in the discovery stage of litigation, which the advocacy groups argue is a method of intimidation meant to silence the critic's speech. Rather, they should be required to prove that the statements or remarks fulfill their claim of libel before the poster's identity is revealed.
RESOURCES:
New York Times (Need free username for access to article).
Newsweek, Beware What You Post, October 30, 2000.
