AOL sides with anonymous posters

In a legal filing, the Dulles, Va., media giant blasts these lawsuits as an abuse of the legal system and says they threaten to curtail free speech on the Internet. AOL provides Internet access to more than 26 million subscribers, who account for a significant volume of online postings.

This is the first time that AOL (aol) or any message-board operator has legally weighed in on the contentious debate over whether there should be limits to what people can say on the Internet--often hiding behind the veil of anonymity. Scores of lawsuits have been filed by individuals and companies against message-board posters alleging libel and defamation.

AOL argues that the legal threshold for these lawsuits and for unmasking the identities of the posters who are being sued should be raised to protect their First Amendment rights. The company made its point in a friend-of-the-court brief filed last Monday in a so-called cybersmear case that's now before a Pennsylvania state appellate court in Pittsburgh.

"The only real objective of some of these lawsuits is identification," AOL says in its brief. "These suits can constitute an illegitimate use of the courts to silence and retaliate against speakers whose statements, while unpleasant from the standpoint of the [plaintiff], were not unlawful."

Friend-of-the-court briefs are usually used by parties that aren't directly involved in a case as a plaintiff or defendant but who have a strong interest in its outcome.

For AOL, the issue is more than just its customers best interest or protecting free speech on the Internet. Because many posters publish their messages using fictitious names, it is impossible for plaintiffs to find out who they are unless they file a lawsuit and subpoena AOL and other message-board companies for identifying information. AOL and its rivals, including Yahoo! Inc., Terra Networks SA's Raging Bull, and InfoSpace Inc.'s Silicon Investor, have to answer hundreds of these subpoenas each year.

AOL barraged with subpoenas
And the burdens have been growing. Last year, for example, AOL received nearly 475 subpoenas, a 40% increase over 1999. AOL won't say how much effort--time or money--is involved in tracking down the posters and answering these subpoenas. However, complying with these court orders keep the "handful" of AOL lawyers and legal assistants who handle these matters busy, says AOL spokesman Jim Whitney.

"Our aim is not to provide blanket anonymity to our subscribers," says AOL General Counsel Randall Boe. "But we think there are thresholds that parties should have to meet first before unmasking someone."

Officials at Yahoo, Raging Bull and Silicon Investor declined to comment.

Legal experts count some 150 cybersmear cases in the system, and Boe says AOL chose to weigh in on the matter now because of the sheer volume. Moreover, some of these cases are now at the appellate levels -- including the case that got AOL's attention -- where decisions could form a precedent and have a significant impact on the outcome of similar lawsuits.

Most cybersmear suits are filed by companies and their top executives, and usually include allegations that posters were trying to harm the company and manipulate its stock price. But the case AOL has commented on doesn't include any corporate element. It involves a Pennsylvania state judge.

Judge claims she was defamed
The judge, Joan Orie Melvin of the Pennsylvania Superior Court, filed suit in July 1999 in Allegheny Court of Common Pleas alleging she was defamed by a person known only as "Grant Street '99," who posted a message on an AOL Web page saying she was "lobbying" Gov. Tom Ridge to appoint a lawyer to a local judge's seat.

After Judge Melvin filed the suit, she subpoenaed AOL for information identifying her critic. AOL notified the defendant of the subpoena, and the person hired a lawyer. Last November, Judge R. Stanton Wettick Jr. denied the poster's motion to dismiss the case and a separate motion to protect the person's anonymity. The decisions are under appeal and the person's identity remains a secret, says Ronald Barber, the poster's attorney. The next hearing isn't likely until sometime in May, Barber says.

John Orie, a lawyer who is representing Judge Melvin, his sister, in the case, didn't return calls.

AOL says in its brief that the court should "test the merits and viability" of Judge Melvin's contention that she was defamed before allowing her to learn the name of her unidentified critic. "This approach is an essential means for protecting anonymous online speakers' First Amendment rights," AOL said.

AOL's arguments echo the views of the American Civil Liberties Union, which is helping the poster in the Melvin case, and Public Citizen. The two organizations have argued that companies must first show they have been damaged by the alleged defamatory postings before being allowed to unmask their anonymous critics. These free-speech advocates welcomed AOL's filing.

"This is a very strong step by AOL," says Paul Levy, an attorney at Public Citizen, the Washington consumers group founded by Ralph Nader, who has defended people sued for allegedly defaming companies and their managers online. "It's a much more detailed argument than they've ever made before about their customers' rights to anonymity on the Internet."

But attorneys who bring these cases on behalf of companies say it's unreasonable for courts to require plaintiffs show they have been harmed before identifying the accused.

"While some companies are surely misusing the courts, the fact remains that people are also misusing the Internet by publishing fraudulent or false information," says Victor Polk, head of the technology and intellectual property litigation practice at Bingham Dana in Boston. "If you don't know who is the person you are accusing of libel or defamation, it becomes effectively impossible to make a case."

Day in court
He adds that because AOL and other message-board operators have policies to notify their customers when their confidential information is subpoenaed, defendants in these suits have ample opportunity to retain lawyers who can explain in court why their anonymity should be protected.

AOL has come under criticism for disclosing its customers' private information in the past. In 1998, it acknowledged violating its privacy policies by releasing information showing that a customer being investigated by the U.S. Navy was homosexual. AOL settled with the navy officer for an undisclosed amount.

Recent court rulings have come down in favor of protecting anonymous speech.

Last Friday, for example, the Virginia Supreme Court quashed a subpoena for an unnamed Indiana company which sought to identify critics that had allegedly posted defamatory messages on Internet chat rooms. The court said the company had failed to show it had been harmed economically by the messages.

Similarly, in November, a New Jersey state judge denied another software company's effort to unmask its anonymous critics by refusing to grant a subpoena. The judge ruled that the company, Dendrite International Inc., had "failed to demonstrate that it was harmed by any of the posted messages."

And last week, a federal judge in Los Angeles dismissed a suit filed by a software company against two anonymous defendants who had alleged defamed its top executives. The judge ruled that the company, Global TeleMedia International Inc., was fair game for public discussion about its performance because it is a publicly traded company with thousands of shareholders and a following on Internet message boards.

But in Florida, an appellate court panel ruled that people who anonymously criticized the former chief executive of a marine-services company have no right to anonymity and must face their accuser in court. That case is pending.