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In retaliation, companies have taken to suing their Web detractors. The goal of these suits: to find out who has been slinging mud online. In that, they usually succeed. In the typical scenario, the company files a defamation suit when it sees a posting it finds objectionable. Since the company doesn't know the identity of the anonymous author, attorneys ask the judge for permission to subpoena the host of the message board for the information. Because many hosts comply with the subpoena without a fight, the anonymous critics are often identified before they even know they've been sued. This troubles civil rights advocates, who worry that these so-called John Doe lawsuits (so named because the companies call the anonymous defendants "John Doe" in their legal filings) will chill free speech. Once the word gets around that companies can easily pierce the veil of anonymity on the Net, they worry, people will be more reluctant to speak out -- even if they have valid things to say. As a result, groups such as the American Civil Liberties Union and the Public Citizen Litigation Group have been intervening to represent anonymous speakers on the Internet. Last month, these civil rights groups got one of their biggest victories yet in Melvin v. Doe, a case filed in Pittsburgh. The plaintiff in that case is Joan O. Melvin, a Pennsylvania state judge. Last year, someone posted a statement on America Online accusing her of "misconduct" for allegedly lobbying Pennsylvania's governor to make an underqualified local lawyer a judge. She sued and asked the court to force America Online to identify the author, who went by the name GrantStreet99. PERSUASIVE AUTHORITY. On Nov. 15, Judge R. Stanton Wettick Jr. denied her request. In a 38-page ruling, the judge said that "a plaintiff should not be able to use the rules of discovery to obtain the identity of an anonymous publisher simply by filing a complaint which may, on its face, be without merit." Instead of giving Melvin an automatic right to find the identity of her anonymous accuser, he gave GrantStreet99 an important procedural protection. Specifically, Wettick said that John Doe defendants should have a chance to make a motion for summary judgment to prove that the defamation suit is frivolous before their identity is revealed. Based on the facts of the case, Wettick held that in this instance, GrantStreet99 failed to prove Melvin's case was frivolous. But civil rights groups are still cheering the decision. Why? Because his decision offers the type of legal protection these groups have been seeking for some time. The Melvin case was decided by a comparatively low-level judge in a state court, so its value as a direct precedent for other cases will not be great. But it does give civil rights groups some persuasive -- if not binding -- authority that they can show judges. "What this case is useful for is the reasoning. It is the first case to really lay the analysis out," says Paul Levy, a lawyer at the Public Citizen Litigation Group in Washington, D.C., who has brought several suits on behalf of John Does. Now we'll just have to wait and see if other courts follow the lead of Judge Wettick. We shouldn't have to wait long. There are several other John Doe suits in the courts, and the defendants are grasping for any help they can get. France covers Legal Affairs for Business Week in New York. Have a question or a comment? Let him know at mike_france@ebiz.businessweek.com. |
