June 1, 2011
Anonymous Wikipedia Poster Who Wrote About Company’s Reported Connection to Hezbollah Should Not Be Uncloaked, Public Citizen Tells Court
Highlighting Relationship Between a Company’s Owner and Terrorist Organization Did Not Break the Law
WASHINGTON, D.C. – An anonymous poster who criticized a fashion company on Wikipedia did not break the law, and revealing her identity would violate her First Amendment rights, Public Citizen argued in a motion filed today on behalf of an Internet service provider (“ISP”) in the U.S. District Court for the District of Colorado.
In addition, unmasking the poster’s identity could upend established case law and give companies undue leeway to pursue their online critics.
In March, the poster edited the Wikipedia pages for the fashion company, Faconnable USA, and its owner, M1 Group, Ltd., writing that the owner is “purported to be a strong supporter of Hezbollah.” The poster warned that people purchasing Faconnable’s products should consider that they may “provide support for an organization identified by the U.S. government as a supporter of terrorism.”
The M1 Group was co-founded by Najib Makati, a billionaire and politician who was recently made prime minister of Lebanon – a move that, according to press reports, was made possible by the support of Hezbollah.
Soon after the anonymous poster edited the Wikipedia pages to make these changes, agents for M1 Group deleted them. Nevertheless, on April 7, Faconnable sued the poster in Colorado district court for defamation. The company also claimed the poster had violated its trademark because the statements made false representations about a person’s affiliations. The company asked the court to let it gather information that would identify the anonymous poster. Magistrate Judge Boyd Boland granted the order on April 18.
“The speech in this case complains about the relationship between a company and a terrorist organization, which is surely speech on a matter of public interest and hence entitled to a high degree of constitutional protection,” said Paul Alan Levy, the Public Citizen attorney representing the anonymous poster’s Colorado-based ISP, Skybeam, Inc.
After the magistrate judge granted the order, Faconnable sent a subpoena to Skybeam, whose facilities the poster had used to post the comments. Skybeam objected to the subpoena because responding to it would violate its customer’s First Amendment right to speak anonymously and because the company had not attempted to inform the poster that her anonymity was at risk. Skybeam also requested more time to notify its user of the subpoena.
The magistrate judge rejected the request, acknowledging that precedent overwhelmingly supports First Amendment protection for anonymous Internet speakers but saying that “a few courts and commentators” disagree with that approach. He directed Skybeam to comply with the subpoena by June 3.
Public Citizen assumed the representation of Skybeam to object to the magistrate judge’s order.
“Whatever the reason for speaking anonymously, a rule that makes it too easy to remove the cloak of anonymity will deprive the marketplace of valuable ideas,” Levy said. “Given that there appears to be some truth to the contention that there is a relationship between the company’s owner and the terrorist organization Hezbollah, a specific affidavit from an individual with personal knowledge disputing this relationship should be required before a subpoena is issued stripping the poster of her First Amendment right to anonymity. Faconnable has not even provided reasons to believe that the poster defamed it or infringed its trademark.”
Setting the bar too low for revealing a poster’s identity would have a chilling effect on free speech, Levy added. The court should quash the subpoena to Skybeam, he said.
John Siever of the law firm of Davis, Wright and Tremaine, is co-counsel, working with Levy in preparing Skybeam’s objections.
Faconnable’s Wikipedia page has since been removed by Wikipedia editors for being too self-promotional.
Public Citizen is a national, nonprofit consumer advocacy organization based in Washington