Cybersmear or Cyber-slapp: Analyzing Defamation Suits Against Online John Does as Strategic Lawsuits Against Public Participation
| Publication year | 2001 |
| Citation | Vol. 25 No. 04 |
A recent advertising campaign by a national Internet Service Provider (ISP) depicts a happy home of consumers who never have to leave their house thanks to their super-fast connection and the wonders of limitless shopping on the web. Television spots show people in awe over the selection and convenience as they click away at laptops purchasing kitchen appliances, trading stocks, and occasionally greeting a courier with the latest treat materializing from their online adventures. In some ways these ads are a fanciful depiction of our current reality. While many of us have felt the excitement of a dot com shipment just a few clicks away, the seamless function of technology and infrastructure depicted is probably a bit more idealized than we would recall. However, as we move closer to a society in which online activities increasingly usurp real world activities, we must ask whether fundamental rights will follow.
Consider the problem of John Doe, a member of our Utopian cy-ber-shopping household, who wants to comment on a web forum about an issue of public interest. Whether it is the stock of a publicly-traded company, a public figure, or a government official like a judge, when John Doe sends a critical anonymous post to the forum, he has just opened himself up to having his identity revealed to the object of his criticism. The company or individual need only file a defamation suit (with merit or otherwise) and proceed with discovery. It becomes readily apparent that when a netizen like John Doe wants to participate in an anonymous online discussion about an issue of public interest, he does so without the benefit of certain fundamental rights: free speech, privacy, or due process. This chills online speech, thus undermining the democratizing nature of the Internet.
I. INTRODUCTION
"[The Internet is] the most participatory form of mass speech yet developed." (fn1) Unfortunately, attacks on individual privacy in the courts threaten to chill participation in online speech. While all major online service organizations assure their subscribers that personally identifiable information is kept in some degree of confidence, such assurances must fail in the face of a court-ordered subpoena. Additionally, many companies disclose subscriber information without a court order: a civil plaintiff attorney's subpoena or request will often suffice. Often, subpoenas are served pursuant to lawsuits filed for the primary purpose of uncovering an individual's identity.(fn2)
Threats to individual privacy and speech online have recently been stressed in so-called cybersmear lawsuits.(fn3) These are defamation suits brought by companies against individuals who make disparaging remarks about a company on Internet discussion fora.(fn4) The processes, results, and consequences of cybersmear litigation serve as a touchstone for the issues presented by abuse of civil discovery against online John Does.
Lawsuits commenced for the purpose of identifying and silencing a cybersmear detractor are reminiscent of Strategic Lawsuits Against Public Participation (SLAPP).(fn5) SLAPP suits have long been recognized as an abuse of the judicial system. Sixteen states have statutes or strong case law prohibiting SLAPPs,(fn6) and federal courts, while not directly appealing to SLAPP doctrine, have used a similar approach under similar circumstances.(fn7) However, most analyses of First Amendment issues in cybersmear litigation have concentrated on the Free Speech Clause and not the Petition Clause implicated by anti-SLAPP law.(fn8)
This Comment questions the intellectual move away from SLAPP analysis of cybersmear cases. Although the emphasis on free speech has yielded some recent courtroom successes for online John Does, the defendants in these cases have been able to appear in court and assert their defenses.(fn9) Where defendants cannot appear to challenge the sufficiency of the complaint on free speech grounds, SLAPP analysis provides a procedural mechanism for stopping frivolous lawsuits before the defendant's identity may be sought regardless of whether the defendant can appear. While it is true that the original purposes of the anti-SLAPP movement were grounded in strict Petition Clause issues, where the initial communication was "made to influence governmental action or outcome,"(fn10) current law and thinking have broadened that criterion to include the greater scope of the Petition Clause as a protector of public speech.(fn11) Under a broader definition, a First Amendment analysis of cybersmear must include not only free speech but also SLAPP considerations.
Instead of proposing a courtroom strategy per se, this Comment suggests that the SLAPP theory can function as a bar to abusive civil discovery by increasing the plaintiffs burden before issuance of a subpoena against a Doe defendant. Given the importance of the role that the Internet plays in facilitating communication and community building as well as the value we place upon free and open discourse, some regime of protection of anonymity must be instituted. In privately-controlled cyberspace, devoid of many of the constitutional protections of real space, procedural or substantive changes must be made in the law to protect subscriber privacy and preserve the participatory, and ultimately democratic, nature of the Internet.
This Comment will first survey the law of cybersmear, illustrating the paradigmatic issues and legal theories employed. Then, it will discuss the free speech issues and theoretical bases argued in court and legal journals, paying special attention to the shortcomings in current protection of defendant anonymity. Next, it will examine the value of online anonymity and the protections that the SLAPP theory offers. Finally, given the breakdown in the public and private space dichotomy, this Comment will argue for a new understanding of the SLAPP constitutional protections in cyberspace. This understanding will recognize the powerful dynamics of online speech regulation, in contrast with those of its real-world counterpart, and ensure that the would-be private arbiters of the technology and, therefore, liberty in cyberspace do not stifle the free discourse enabled by Internet technology.
II. Cybersmear and the Piercing of Anonymity
In recent years, a vast industry of service and content providers has taken shape in order to meet the demands of Internet users who seek out, read, and post information for others to read on an infinite number of topics. Among the most popular topics are the achievements and shortfalls of publicly traded companies. Various web sites, Usenet newsgroups, and chatrooms are dedicated to the discussion of stocks. In most of these fora, visitors with a wide range of expertise post messages touting or criticizing the performance, management, or employees of a given company. These messages are usually brief and exaggerated, often consist entirely of hyperbole or sarcasm, and range, in tone from insults and name-calling to sycophancy. They are usually posted pseudonymously by users whose pseudonyms bear no relation to their actual names. Most visitors to message boards know to take anything they read with a grain of salt, as there is typically no way to verify the identity of the poster nor the truth of the statement.
For example, Yahoo!, a web-based content provider, hosts typical message boards on their web site,
Despite the growing understanding among the Internet community that message boards are, at best, of questionable factual value, companies that have been disparaged on Yahoo! message boards or other fora have filed numerous defamation suits against the unknown John Does who posted critical or insulting messages.(fn16) These cybers-mear cases ostensibly seek to recover for reputational damage allegedly caused by a message board post.(fn17) The primary purpose of many of these suits is not to pursue a defamation cause of action, however, but to reveal the identity of the poster and quiet criticism.(fn18)
This practice is becoming increasingly popular among corporate plaintiffs, raising several troubling issues. The most significant issue is the lack of privacy afforded to subscriber information by the courts. Subscriber information that is knowingly revealed to an online service provider(fn19) is not protected under the Fourth Amendment because there is no expectation of privacy.(fn20) Additionally, subscriber information is typically not protected...
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