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Internet Free Speech Rights Needlessly Trampled

June 18, 2003

Internet Free Speech Rights Needlessly Trampled

Lower Court Should Reconsider Its Decision to Reveal Identity of Yahoo! Message Board User, Public Citizen Tells Appeals Court

WASHINGTON, D.C. – A federal trial court in Delaware sloppily followed procedures designed to protect anonymous online speakers from having their identities revealed and should revisit its decision to permit a California company to learn the identity of an anonymous Internet critic, Public Citizen told an appellate court today.

In a brief filed with the U.S. Court of Appeals for the Third Circuit in Philadelphia, Public Citizen urged the higher court to order the trial court to revisit its ruling that a California medical device company can learn the identity of a Yahoo! message board poster.

Equidyne Corporation filed suit in May 2002 to learn the names of 21 anonymous users of Yahoo! and Lycos message boards, claiming that the posters were current and former employees who had disclosed confidential information online and had used false and misleading statements to promote a number of candidates to the corporation’s board. Yahoo! routinely notifies its users of such subpoenas. One of its users, identified online as Aeschylus_2000, sought to quash the subpoena.

Recognizing that the First Amendment right to speak anonymously must not be trampled simply because a plaintiff is upset by the speech, a New Jersey court in the 2001 case Dendrite v. Doe established a five-part test to determine whether the identities of online critics should be revealed.

Courts should first ask the Internet service provider (ISP) to notify speakers that they are the subject of a subpoena and give the defendant a reasonable amount of time to hire a lawyer. Second, plaintiffs should identify for the court the specific statements that are at issue in the case. Next, the court should review each of the statements to determine if they are potentially defamatory. Overly vague statements, or statements of opinion, for example, should not be sufficient for legal action. Those seeking disclosure should also be required to show that they have a realistic chance of winning a lawsuit against the anonymous speaker. In the case of a public figure, proof of actual damages should be required. Finally, the court must balance the importance of the speaker’s anonymity against the strength of the plaintiff’s case.

Equidyne acknowledged that this procedure was important, but the company argued that it met the standards, an argument the trial court erroneously accepted. Although Yahoo! notified Aeschylus that his identity was being sought, he did not have adequate time to hire a lawyer and prepare a reply. Equidyne’s complaint identified statements that it claimed were actionable for only 13 of the 21 defendants, and the company did not provide evidence of damages that would warrant the disclosure of the posters’ identities.

“The only harms Equidyne has identified are that it had to hire a lawyer and prepare its own proxy statement. But these meager damages weren’t even caused by Aeschylus’ statements, and the company didn’t express them in their original complaint,” said Paul Alan Levy, an attorney with Public Citizen and author of the amicus curiae brief. “They certainly do not outweigh his First Amendment rights. Corporations should not be permitted to use subpoenas to chill free speech on the Internet.”

Careful application of the Dendrite procedure ensures that malicious posters cannot hide behind their anonymity and that corporations cannot unmask critics simply by filing a complaint alleging vague damages. Corporate attorneys have explicitly encouraged companies to bring suits to reveal critics’ identities as a way to chill online criticism. Public Citizen has a history of defending free speech on the Internet and credits the Dendrite decision for lowering the number of unnecessary lawsuits filed by companies to learn critics’ identities even if they have no intention of pursuing a claim of actual harm.

“Internet speakers may choose to speak anonymously for any number of reasons, and if Equidyne is permitted to remove that anonymity based on such flimsy arguments, it will be a blow to the free flow of ideas on the Web,” Levy said.

To see a copy of the brief filed today, click here.