Recent legal decisions cast a question mark over internet anonymity and your freedom from liability.  People who thought they were safe with their rants in cyberspace are feeling the wrath of their victims who are dragging them into the courtroom.

   “Can’t happen,” you say, well it can and is. Even that SOB who screwed up your credit is getting caught in his own web. You know, that “Russian” guy who was selling your credit card number on the web and had set up his own version of Pay Pal to handle the buy-sell aspect. He is presently cooling his heels in France on his way to extradition into the hands of Uncle Sammy. But enough with the cops and rubbers, I mean robbers, let’s get back to freedom of speech cases.

  So you think you can call someone an idiot on the internet and there will be no consequences? Or write a review of a local restaurant that you say serves “shitty food, and that the meat balls were made in the toilet?” Or call a car dealership “a crap house selling defective cars.” Or point out that a provider has bad breath and gives lousy BJ’s? Or lay claim that you were assaulted by an escort you did not fancy when you refused to enter her apartment thereby breaching the oral contract, and then you slam her back for ever after on hobbyist sites?  Can any of these people come after you when the only name they know is your identity of “cookieplunger”?  ...and you feel so safe and private in your bedroom at 4 a.m. with one finger on your computer keyboard and the other hand on your private musing.

  Well Bucko, the times “they be a’chang’in.” With a court ordered search of you favorite internet site, your identity can easily be constructed, and with your name now known, any legal suit can proceed, and you might find yourself in an expensive court action where Ronald McPluck is suing you and claiming his sale of fried Faux Duck Turd has so plummeted that he has had to close his 2 million dollar fast food slop center and maybe you can pony up a good part of his loss since you were the one who pointed out to the entire nation that the Faux Turdballs tasted like real duck Turdballs. There goes the house, the savings and maybe even junior’s college fund.

  Of course, the defense to most charges of defamation is the truth; if the Faux Duck Turd does taste like real turd, then you should be off the hook. However, while having a good defense may mean you are holding the high card in a court case, it does not mean you can avoid going to court. You can be right and still loose. You can be right and still bankrupt yourself paying for your defense. Look at our man about town, the ex-gov of Illinois, Blogo; he beat all but one of 23 charges, spent over 2 million doing so, and now that he is out of mulla, the feds will bring him back to court and start all over again and he ain’t go no more mulla left! The poor son of a bitch can’t even afford a hair cut! Last seen he was crew cut like Obama.

  In your case, it might just might turn out that the judge likes the Faux Turdballs, or no one else thinks Sally Husky, whose income has dropped to next to nada, gives bad BJ’s or the local Carkiller car lot has a lot of friends or that escort with the heavy hands also has had her hands on the judge’s penal record. Not possible? Believe me it is possible; truth and justice are not frequently the shout-outs in the hall of just-ass.


  The basic idea is do not pull the tiger’s tail. Or as Croce used to sing, “You don’t mess around with Slim.” When you have a negative comment, preface it with the statement that “this is my opinion”.  

  Think about what you are saying. Is it offensive? Can it result in economic damages or loss to someone? Is your rant well founded or bad spirited? Should you wait a bit before hitting that send button?

  Avoid hyperbole, i.e. “she had the worse tongue in the state” instead say, “although I was awaiting a rousing rendition of “Thar’ she blows.” I ended up getting bitten by her snaggle tooth.”

 And if you cannot prove an assault, since you never filed a police report, and you know your comments caused the provider to leave town and damn near go out of business, what ever that business was, then maybe the internet is the wrong place to vent your spleen?

Don’t say “all the cars are defective three thousand pound shit bags.” Just say, “Shit, it turns out the vehicle I had chosen was defective.”

  And for God’s sake, “do not say the Judge’s mother was a whore."  
If you have to say something just say, “I once had an intimate sexual relationship with old women who would comment when I paid her for her services,
     “Thanks Honey, this money will get my son through law school.”


Sources:

See NY Times.com article on Internet Crime Aug 23, 2010 ... MOSCOW —“On the Internet, he was known as BadB,”

Los Angeles Times, August 23, 2010, “Online rants can turn costly,” page 1,
with info on Hal Turner rightwing blogger facing prison for posting comment that 3 Chicago judges should be killed;

Western Penn  township official’s suit called a jerk who pocketed city funds and whose car dealership sold junk;

North Carolina county official suing anonymous blogger who called him a slumlord;

U S 9th Circuit Appeals upholds order to disclose identity of internet smears; Quixtar (previously called Amway) suit

Also legal opinions of various Law professors




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-- Modified on 8/28/2010 1:10:51 PM

along with sources.

The last time I checked, and I keep an eye on "freedom of speech" cases, there is a lot that a person has to prove in court before he can get an ISP to issue information.  Yes, some courts in some jurisdictions have made it a bit easier but there's still a lot they have to do.  In NJ, the guidelines that have been established are (from Immunomedics, Inc., vs Jean Doe AKA "moonshine_fr" 342 N.J. Super. 160 (2001):
"We offer the following guidelines to trial courts when faced with an application by a plaintiff for expedited discovery seeking an order compelling an ISP to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations or businesses. The trial court must consider and decide those applications by striking a balance between the well- established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants.
   We hold that when such an application is made, the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.
   The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.
   The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(f), the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.
   Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."

Some additional cases that I think dispute your claim:
O'Grady v. Superior Court, supra, 44 Cal. Rptr. 3d at 100 (2009)

Apple Computers, Inc. v. Doe 1, No. 1-04—CV-032178, slip op. at 7-13 (Cal Sup. Ct. Mar. 11, 2005)

State of New Jersey v. Shirley Reid  195 N.J. 422, 949 A.2d 850 (2008) (in which the court supressed Internet subscriber information about Reid obtained via an improper subpoena on the basis that "the Court holds that citizens have a reasonable expectation of privacy in the subscriber information they provide to Internet service providers"


I could go on but I haven't seen anything in the last year or two that leads me to the conclusion that cast any question mark on Internet liability.  So, if you've seen something different, I'd love to know about it.

You would probably have to budget at least $20,000 for the simplest defamation lawsuit with bargain basement attorneys.            

       There is no money in a defamation lawsuit between individuals bc you can't really show a monetary loss to your reputation. No atty would take that kind of case on a contingency so you have to be willing to pay his hourly fee for the two years it would take to litigate the case to appeal and back.

     Now if you defame a company - restaurant lawsuits are the current vogue - maybe they could show enough lost profits to make it worth their time but then you face the question of whether the defendant has the money to pay for that anyway. Most homeowner policies will exclude coverage for defamation in this circumstance. So with respect to the bozos who are filing these lawsuits, the only ones who are going to have a happy ending are the attorneys.

      Indeed, you need look no further than the P & R Board where we have defamation on a daily basis. Nobody has been sued yet LOL.

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-- Modified on 8/29/2010 6:54:09 AM

Of course you are right when we get to the little fish, but have you noticed that 20k sure is not what it used to be? Also, when people get mad, they often throw caution to the wind and yes, that is how lawyers get to propel their sailboats!

You don't provide links so I'm guessing...

This is not a defamation case.  It's an identity theft case.  It doesn't support your contention.While this is a free speech case, in a sense, it's not a defamation case... and it shows that there are still limits on free speech like there always were.  Just like you can't shout "fire" in a crowded theater.  This case doesn't support your claim.Not enough information to locate the actual case via google.  But, I did find an article that mentions it and my sources say that the only thing that's happened so far is that the judge ordered the ISP to identify the person.  The defamation part is still ongoing.  According to my source, the judge followed the same guidelines I mentioned in my post to decide whether or not the identity should be revealed.Same situation as above. Again, the judge only ordered the identity revealed.  According to my source, the suit is meritless and will probably be dismissed.  And various other law professors have disagreed.  Law is an adversarial profession so you're bound to find people on both sides of the issue.

Anyone who is interested in the subject of Free Speech on the Internet should take a long look at
http://www.eff.org/cases/

If you don't know who they are, the Electronic Freedom Foundation (EFF) is an organization that is dedicated to preserving things like free speech rights on the Internet.  I know several of the lawyers working there, and I've had my own Internet and free speech issues that they've provided advice on.  Articles on their site helped me to get a lawyer's defamation case against me resolved in my favor.

For example, here's a case where anonymity was protected:
http://www.eff.org/cases/e-van-cullens-v-john-doe

Free speech on the Internet isn't dead... it isn't even maimed.  Like everything else, it takes a few hits now and then and gets hurt... but quickly recovers.

But, the one axiom that has always remained true and the media hasn't mattered:
true statements won't harm you but false statements can cost you money.

and the posts I have read are not keeping the distinction clear.

     I don’t think there has been any change to a poster’s liability for internet postings. Of course he is subject to liability if he defames someone. What has changed is a statute insulating the ISP from liability for the defamation on its boards if it is not a “content provider” which I’ve always assumed is the reason TER does not allow mods to write reviews.  But the guy who makes the post is subject to liability according to the same old rules against defamation.

      But I think Legal Beagle was primarily talking about anonymity – can you in a civil lawsuit (in a criminal investiation or lawsuit you better believe LE can get that) force that ISP to give you the name of the poster who has been defaming you?
     
    And the answer is yes.

        In the defamation context between private individuals, the First Amendment is not going to protect a person who posts anonymous defamatory matter on a discussion board. Using the P & R Board, for example, I absolutely could obtain a subpoena from TER (if TER was subject to the court’s jurisdiction which is a separate question) to obtain the true identities of all those mean posters who have called me names over there, assuming truth is not a defense. LOL.

         You would file your defamation lawsuit against John Doe a/k/a his internet handle and then serve a subpoena on the company that owns TER.

     If TER or the mean posters moved to quash that subpoena on privilege grounds, depending on the jurisdiction I might be required to show that I could prove all elements of defamation but the identity of the defamer and that I have no other source to get the defamer’s identity but that would be pretty easy to do.

       This business about balancing First Amendment rights against the plaintiff’s rights is illusory where defamation as opposed to political speech is concerned

       Check out the Yale law students case against the idiot who posted all sorts of defamatory stuff. They just served a subpoena on ATT and got his true identity. His attempt to quash that subpoena was rejected.

         The First Amendment is simply not going to protect defamatory postings. Now if political speech was involved –if Nancy Pelosi tried to identify posters who are the funding the opposition to that mosque by subpoenaing an ISP – that would be a different story. And commercial speech gets a little more protection. But in the context of what I understood Legal Beagle to be talking about, you smear someone on the Boards at your peril.

        If there is enough money at stake to justify that lawsuit, they can come after you.

Thanks for your excellent comments and cites! You summarized nicely my point when you said “true statements won't harm you but false statements can cost you money.”
I am not so sure that the internet free speech will remain as “free” in the near future and  I believe it will become much the same as the rules relating to the press and media with discovery and identity not much of a problem. I foresee private sources tracking down identities for a small fee and negating the need for court ordered identity searches. That is why I would suggest that negative comments about others should be thoughtfully applied and measured by the test of truth as well as the measure of one’s opponent’s voraciousness.

One of the many reasons I live in NJ, as horrible as it is in other respects, is that "Free Speech" rights are STRONGER in NJ than in other states.  That's because NJ has a clause in its own constitution that gives free speech rights to speech beyond political speech.

It's been tried and tested in NJ over the years... and if LE gets a John Doe's info from a provider, if it isn't quashed as it should be by the courts under NJ law, then the appeals courts will overturn the decision.  It's happened.  Many times.

however to ascribe liability you must pierce the veil of anonymity