Libel Online

For many people, the Internet has opened a new world. From the comfort of their own homes (or offices), they can visit exotic places, shop around the globe and express themselves in ways never before possible. But this new-found freedom has a dark side. Cloaked in the relative anonymity of their user names, people regularly "flame" others in chat rooms, criticize employers, disparage products and post negative feedback on online auctions. As defamation law slowly invades the Internet, more and more people are learning the hard way that these expressions of "free" speech may not be free at all.

The first court cases in this area considered whether Internet service providers are responsible for what members post on their message boards. Courts initially split on whether such providers, including Prodigy and CompuServe, could be held liable. The government settled the matter in 1996 with the passage of the Communications Decency Act, which provides that those supplying online computer services are not liable for information posted by their users.

This law was put to the test when someone on America Online started hawking repugnant t-shirts following the Oklahoma City bombings. The court found that AOL was neither negligent nor liable for the content of the offensive postings.

The Communications Decency Act did not, however, resolve the issue of whether the individual flamer could be held personally liable. Initially, companies were hesitant to institute legal action against their online critics, fearing a backlash of negative publicity. But as the number of suits increased, the stigma against taking legal action diminished significantly.

A case in point is Northwest Airlines' actions against its online critics during a labor dispute. Certain Northwest flight attendants lobbied on another attendants' personal Web site for a sickout - an action prohibited by federal law and a move that forced Northwest to cancel more than 300 flights during a critical holiday period.

Less than a week later, Northwest struck back. Filing suit in federal court in Minneapolis, Northwest alleged that the flight attendants' labor union and certain individual members engaged in illegal labor practices. Northwest subpoenaed the flight attendant's computer on which the messages advocating the sickout were posted. Northwest was also able to subpoena the records of the site that hosted the message board, and used those records to track the identity of those who posted pro-sickout messages. The case has sounded an alarm bell for all people who have considered making similar postings.

Think Before You Post

The same message "critic beware" emerges from a case involving Calloway Golf Company, maker of the famous Big Bertha golf club. In that case the critic was Steven Cade, the owner of La Jolla Club Golf Company, a competitor of Calloway. Using over 25 cyber aliases, Cade posted more than 150 negative comments about Calloway, ranging from comments about the design of their clubs to an impending fall of their stock price.

One posting warned Calloway shareholders to "get out before the next down tick occurs." Another said that Calloway had "lost their ability to design new technology."

These comments were not well received by founder Eli Calloway, who directed company attorneys to file suit against the company's then-anonymous online critics. Calloway was able to subpoena the records of Yahoo to see who was behind the disparaging remarks. Once Calloway discovered that the source of many of the criticisms was Cade, it extracted something very unusual in recompense: Cade's formal written apology "on Yahoo" for his alleged transgressions. Cade's problems may not be over, however, because the case was referred to the Securities and Exchange Commission for further review.

Individual consumers should also beware. In a case that was recently settled out of court, a dispute arose over negative feedback posted on an eBay auction. The buyers bid $1,800 and won a vintage doll. Upon receiving the doll, the buyers felt that it was not in the condition posted on eBay, and returned the doll to the seller. The seller in turn posted "negative feedback" about the buyers, specifically alleging that they had tampered with the doll. As a result of the negative feedback, the buyers were viewed as pariahs in the eBay community and were no longer able to do business there. The buyers in turn brought suit in federal court alleging defamation. As a result of the suit, the seller retracted the comments, and the negative feedback was purged by eBay from the buyers' profile.

The message from these cases is clear: when speaking your mind on the Internet, be as careful as you would be anywhere else. The mere fact that you have a seemingly-anonymous user name will neither insulate your identity nor prevent a consequent suit against you.

Eric Vance is an attorney with the Philadelphia law firm of Woodcock Washburn Kurtz Mackiewicz & Norris, where he specializes in intellectual property litigation and e-commerce matters.

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