[LTPC-discussions] Important, a must read
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Post only what you know for sure, or hold till till it might be needed. Do=20
not say anything that can not be proven at this time. first legal opinion w=
ill=20
be posted Monday or Tuesday.
Richard
=20
Contents
=C2=A0
<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Abstract">Abstract</A>
=20
1.
<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#1">Introduction</A>
=20
2.
<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#2">History and Issues Sur=
rounding Cybersmearing</A>
=20
3.
<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#3.">Key Cybersmearing Cas=
es</A>
=20
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LAN4.
<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#4">Current and Evolving T=
rends in Cybersmearing Cases</A>
=20
5.
<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#5">Conclusion</A>
=20
=C2=A0
<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Notes and References">Not=
es and References</A>
=20
=C2=A0<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/rtfs/naples.rtf">Downloa=
d</A>=20
=C2=A0
=C2=A0
=C2=A0
=20
Cybersmearing: A Legal Conflict Between Individuals and Corporations
=C2=A0
Gregory J. Naples
Associate Professor
Department of Accounting
Marquette University
Milwaukee USA
<A HREF=3D"mailto:gregory.naples@marquette.edu">gregory.naples@marquette.edu=
</A>
=C2=A0
Meredith Maher
Graduate Research Assistant
Department of Accounting
Marquette University
Milwaukee USA
<A HREF=3D"mailto:meredith.maher@marquette.edu">meredith.maher@marquette.edu=
</A>=20
=C2=A0
Abstract
Cybersmearing is the act of anonymous communication of false information=20
about a corporation over the Internet, which causes economic damages. Initia=
lly,=20
Internet Service Providers (ISPs) were concerned with their legal liability,=
=20
which was limited by the Communication Decency Act of 1996. Next, courts in=20=
the=20
United States struggled with how to compensate corporations from the anonymo=
us=20
acts. The courts issued subpoenas to the ISPs to determine the true identity=
=20
of the anonymous user and then proceed with the case. However, currently the=
=20
federal and state courts in the United States are struggling with the balanc=
e=20
between Internet privacy and corporate defamation. First Amendment rights=20
ensure that Internet users can communicate freely; however, United States To=
rt law=20
ensures that corporations have the right to protect their reputations.=20
Hundreds of cases have been filed relating to this topic; however, most are=20
voluntarily dismissed after the anonymous party's identity has been revealed=
. Current=20
trends show federal courts are formalizing the process to issue subpoenas to=
=20
determine the true identity of Internet users and courts are now applying a=20
stricter view to protect First Amendment rights.
Keywords: Cybersmearing, Defamation, Corporations, Privacy, Regulation, ISPs=
.
This is a Refereed article published on 16 August 2002.
Citation: Naples G J and Maher M, 'Cybersmearing: A Legal Conflict between=20
Individuals and Corporations', Refereed article, The Journal of Information,=
Law=20
and Technology (JILT) <A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/">2002 (=
2)</A>, <http://elj.warwick.ac.uk/jil
t/02-1/naples.html>.=20
1. Introduction
With the introduction and rapid evolution of the Internet, users have been=20
provided an elective, often anonymous, electronic platform to globally=20
communicate their ideas, beliefs, and commentary, whether factual or not (<A=
HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Sobel">Sobel, 2000</A>).=20
The perceived anonymity of the Internet enables many users to publish=20
messages that they otherwise might not have sent were attribution to them re=
adily=20
feasible (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Pizzi">Pizzi, 2001<=
/A>). As the US Supreme Court explained in Reno v. American=20
Civil Liberties Union, 521 US844, 870 (1997):
=C2=A0'through the use of chat rooms, any person with a phone line can becom=
e a=20
town crier with a voice that resonates farther than it could from any soap b=
ox,'=20
with the afterthought being that the 'town crier' can remain virtually=20
anonymous, at will. Nevertheless, with the advent of diverse forms of increa=
singly=20
sophisticated electronic technology anonymity is more an illusion than a=20
reality as anonymous message posters have come to realize that they leave be=
hind=20
electronic 'fingerprints' each time that they send a message (<A HREF=3D"htt=
p://elj.warwick.ac.uk/jilt/02-2/#Bell">Bell, 1999</A>). With=20
the assistance and cooperation of Internet Service Providers (ISP's) or=20
web-site owners, the identity of a message poster can be traced to the sourc=
e=20
computer thereby vaporizing any notion of perceived anonymity. Initially,=20
corporations that believed themselves to have been unfairly attacked in the=20=
electronic=20
mail medium sued ISPs claiming liability damages for having provided the=20
mechanical platform that facilitated the distribution of allegedly defamator=
y=20
information. ISPs quickly reacted arguing that they had no control over the=20
unilateral actions of their users; and, hence, should be accorded no less le=
gal=20
liability protection than that enjoyed by telephone companies. The US Congre=
ss=20
supported this position when it enacted the Communications Decency Privacy A=
ct of=20
1996[<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#fn1">1</A>] to immunize=20=
ISPs from most defamatory liabilities[<A HREF=3D"http://elj.warwick.ac.uk/ji=
lt/02-2/#fn2">2</A>].=20
The act of communicating a false, disparaging, or defamatory remark about a=20
company, its management or stock, on the Internet has come to be referred to=
as=20
'cybersmearing' (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Buckingham">=
Buckingham and Rubin, 2001</A>). Although the term has yet to be=20
defined by a court, it has become somewhat expansive in use, including its=20
reference as descriptive of the process through which corporations suffer=20
damages when a poster defames or disparages it on the Internet (<A HREF=3D"h=
ttp://elj.warwick.ac.uk/jilt/02-2/#Goldhader">Goldhaber, 2000</A>).=20
Cybersmearing has caused the United States judicial system to discuss variou=
s=20
theories and methodologies on how to balance a number of contrasting views=20
including: the public's Constitutionally guaranteed First Amendment right to=
=20
free speech and the amorphous notion of 'privacy' versus the corporation's r=
ight=20
to protect itself from disparagement and the unauthorized distribution of=20
proprietary information. During the last three years, cybersmearing has=20
significantly impacted the economic conditions of hundreds of companies and=20=
thus, has=20
resulted in a multitude of federal and state[<A HREF=3D"http://elj.warwick.a=
c.uk/jilt/02-2/#fn3">3</A>] court cases[<A HREF=3D"http://elj.warwick.ac.uk/=
jilt/02-2/#fn4">4</A>].=20
The first part of this paper provides a discussion of the legal issues and=20
history surrounding cybersmearing. The second section describes key federal=20=
and=20
state court decisions that are evolving as the foundation for cybersmear=20
litigation. The last section provides a summary of current and evolving tren=
ds in=20
cybersmearing cases.=20
2. History and Issues Surrounding Cybersmearing
Anonymity. Although the personal privacy interest in controlling the=20
disclosure of an individual's identity is evident, often overlooked is the=20
significance of anonymity in fostering individuality through free expression=
. The=20
protection afforded by anonymity is magnified in the context of the Internet=
, because=20
of the non-quantifiable number of opportunities to both publish and to=20
receive information (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Sobel">S=
obel, 2000</A>). As has been noted by many, the expressive power=20
of the Internet, although long appreciated by its users, has only recently=20
attained constitutional status when the USSupreme Court handed down its deci=
sion=20
in Reno v. ACLU, defining the scope of the Internet's First Amendment=20
protection and finding:
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LAN=C2=A0'no basis for qualifying the l=
evel of First Amendment scrutiny that should=20
be applied to this medium' (521 US844, 870 (1997), aff'd, 929 F. Supp. 824=20
(E.D. Pa. 1996)).=20
Despite the invocation of the First Amendment, anonymity cannot be considere=
d=20
an absolute guarantee of free expression when that expression serves to=20
advocate damaging, illegal, or indefensible conduct. The nondisclosure of id=
entity=20
is often times critical for Internet message posters, particularly when=20
engaged in discussions or postings that include topics concerning corporate=20
financial shenanigans, marketplace deception, employment discrimination, and=
=20
questionable business practices. When such messages stray into the area of c=
riminal=20
activity, the Electronic Communications Privacy Act (EPCA)[<A HREF=3D"http:/=
/elj.warwick.ac.uk/jilt/02-2/#fn5">5</A>] is available to=20
federal law enforcement authorities seeking the actual content of a=20
communication, such as the actual text of an email message or posting. With=20=
the oversight=20
provided by judicial scrutiny, law enforcement authorities can request the=20
issuance of a warrant and a subpoena, if necessary, to compel ISPs to disclo=
se=20
information that identifies a particular Internet user or subscriber. Hereto=
fore,=20
law enforcement use of the ECPA has occasionally raised Constitutional=20
concerns regarding privacy and unlawful seizures, but such concerns have lar=
gely=20
been muted by the impact of the September 11th terrorist attacks in the Unit=
ed=20
States.=20
What remains, however, is serious concern regarding non-governmental, non-la=
w=20
enforcement access to user identity information and whether the language of=20
the ECPA fosters such access where it provides that an ISP:=20
=C2=A0'may disclose a record or information pertaining to a subscriber...to=20=
any=20
person other than a governmental entity'(emphasis added) (18 U.S.C.S. 2703 (=
c)=20
(1) (A)).=20
The extent to which such disclosure threatens First Amendment privacy rights=
=20
is the focus of legislative discussion in the US Congress where the Consumer=
=20
Internet Privacy Protection Act of 1999 has been introduced in the US House=20=
of=20
Representatives in an attempt to limit the distribution of personal=20
information by an ISP (1999 H.R. 313; 106 H.R. 313).
Nevertheless, the growth of the Internet and its ubiquitous nature combined=20
with the perceived urgency of those other than criminal investigators seekin=
g=20
to unmask online anonymity poses serious challenges to issues involving=20
personal privacy and the lack of statutory protection afforded by the ECPA.=20
Increasingly, civil lawsuits are being filed by corporations that have been=20=
the targets=20
of critical information posted to online message boards, hosted at websites=20
such as The Motley Fool, Yahoo! Finance, and others, seeking the identity of=
,=20
and information about, anonymous Internet users. Often times=20
financially-related websites provide readily accessible forums for the excha=
nge of misleading,=20
damaging, or self-serving information on publicly traded companies. Companie=
s=20
concerned about the dissemination of information that is considered damaging=
=20
and the effects of such dissemination in the marketplace, particularly on st=
ock=20
prices (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Keaveney">Keaveney, 2=
001</A>), are going to court and filing lawsuits against=20
unnamed, or 'John Doe' defendants, seeking to unmask their anonymity in orde=
r to=20
assert damage claims allegedly resulting from anonymous postings. Disgruntle=
d=20
employees, dissatisfied investors, critical financial commentators, and othe=
rs=20
are potentially exposed to civil causes of action ranging from defamation an=
d=20
breach of contract to misappropriation of proprietary information.=20
The principal concerns that emerge from these corporate civil suits are the=20
degree to which due process and matters of fundamental fairness and privacy=20=
can=20
be compromised. Routinely, when a corporation files a civil complaint, a=20
subpoena is served on an ISP or message board owner/operator by plaintiff's=20
counsel seeking the identity and related information about the anonymous onl=
ine=20
poster. The ISP may, or may not, notify their user that a subpoena has been=20
received. When notice is provided, the user is presumably provided an opport=
unity to=20
challenge the process in an attempt to quash the subpoena. The legal costs=20
and expenses associated with such challenges, the time constraints posed by=20=
the=20
judicial process, and the degree of success anticipated are all issues and=20
matters that have to be carefully considered by users seeking to preserve th=
eir=20
anonymity.=20
More often than not, ISPs receiving a court subpoena will simply comply as a=
=20
matter of course, without any form of notice to the affected user. As a=20
result, the user has no opportunity to quash the subpoena and the courts hav=
e no=20
role in evaluating the propriety of the request for the identifying informat=
ion=20
sought. It is this precise absence of judicial involvement and adversarial=20
opportunity that exposes the process of discovering the identity of anonymou=
s=20
users to abuse. The delicate balance between the legitimate interests and co=
ncerns=20
of corporations seeking identifying information and the instances of=20
potentially abusive discovery is not easily maintained; nevertheless, the ri=
sk from=20
current legal standards that allow for lawsuits of questionable merit to be=20
filed simply to obtain the identify of anonymous users can easily fall into=20=
the=20
gap of unintended consequences that can stifle, deter, or eventually silence=
=20
even justifiable corporate criticism.=20
Emerging from the hundreds of lawsuits being filed by corporate plaintiffs=20
eager to discover the identity of anonymous Internet users is a core of lega=
l=20
theories that center on arguments in support of defamation, and the unauthor=
ized=20
use of proprietary information. This latter theory is often supplemented by=20
claims of breach of an employment contract, whether oral or written. In=20
defense, users have asserted arguments premised on First Amendment claims of=
free=20
expression and invasion of privacy, and on notions of fundamental due proces=
s,=20
particularly when the discovery of their identity results in an employment=20
termination. Of equal concern is the degree to which the allegedly wrongful=20
statements actually pose a viable cause of action. This latter is most often=
posed in=20
the context of a defense to a defamation claim and the need for the plaintif=
f=20
to show actual harm in order to proceed. The degree to which courts will=20
invoke a requirement of actual harm before permitting a plaintiff to proceed=
on a=20
discovery claim is currently under debate, but seems to be an evolving=20
decisional theory that is gaining support as the result of the Dendrite Inte=
rnational=20
holding discussed later in this paper.=20
3. Key Cybersmearing Cases
ISP liability. The Reno v. American Civil Liberties Union, 521 US844 (1997),=
=20
noted at the outset of this paper, was a key decision in support of exemptin=
g=20
ISPs from vicarious liability for the actions of users; and, again as noted=20
earlier, the US Congress codified this principle with the adoption of the=20
Communications Decency Privacy Act of 1996[<A HREF=3D"http://elj.warwick.ac.=
uk/jilt/02-2/#fn6">6</A>]. However, it is important to note that=20
neither the Reno v. ACLU nor the Communications Decency Privacy Act=20
completely absolves the ISP from any and all liability for the actions of it=
s users.=20
ISPs can still be held exposed to copyright infringement liability by its us=
ers=20
and for those types of communications deemed obscene (18 U.S.C.S. 2710). And=
,=20
at least one commentator has suggested that ISPs could be held vicariously=20
liable, even without knowledge, when either the website designer, the websit=
e=20
owner, or the ISP:
(1) has the right and ability to control, the infringer's acts; or=20
(2) receives a direct financial benefit=E2=80=9A from the infringement (<A H=
REF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Walton">Walton, 1999</A>
).=20
This suggestion does not really carve out any new law as both the Restatemen=
t=20
of Torts Third and common law have both recognized the imputed knowledge=20
concept in the context of actual and apparent agency. What is significant, t=
hough,=20
is the fact that ISPs will have to continually develop increasingly=20
sophisticated technologies to monitor the usage activities of users with jud=
icial=20
scrutiny then shifting to the adequacy of such technologies. The less adequa=
te=20
technologies are deemed the more likely that vicarious liability for neglige=
nce=20
will be asserted.=20
Invasion of privacy based on freedom from warrantless search or seizure.=20
United States law has long recognized the application of the Fourth Amendmen=
t to=20
preclude warrantless searches and seizures, provided that there is neither=20
probable cause (a criminal standard) nor areas on able expectation of privac=
y (a=20
civil standard) (US. v. Katz). Absent a reasonable expectation of privacy,=20
files stored on an Internet Service Provider's server may not be protected b=
y the=20
Fourth Amendment and that the consent of the ISP is all that is required for=
=20
plaintiff's to have access to the identity and information of anonymous user=
s.=20
In John Doe v. 2THEMART.COM Inc., 140 F. Supp. 2d 1088 (2001), the United=20
States District Court for the Western District of Washington directly addres=
sed=20
the issue of the right of privacy of 'John Doe' making accusations of fraud=20
versus the right of a corporation to protect itself from what it asserted we=
re=20
the defamatory implications of such statements. John Doe argued that anonymi=
ty=20
on the Internet was a right protected by the First Amendment and that compel=
led=20
disclosure of his identity was an unconstitutional invasion of his privacy.=20
2THEMART.COM argued that the statements were defamatory and, by definition,=20
unprotected by the Fourth Amendment. In its decision, the court took the pos=
ition=20
that:
'the Internet represents a revolutionary advance in communication=20
technology...It allows people from all over the world to exchange ideas and=20=
information=20
freely' (at page 1101).=20
The court noted that the issues raised in this case challenge the scope of a=
n=20
individual's First Amendment rights and, thus, challenged the court to=20
clarify the degree of proof that must first be demonstrated by the corporate=
=20
plaintiff in support of its defamatory cause of action. In other words, the=20=
court was=20
not convinced that mere allegations of defamation alone were sufficient to=20
outweigh the defendant's right to remain anonymous. A showing that the=20
statements made were such as to reasonably constitute defamation might first=
be=20
required before disclosure would be compelled. Such reasoning would be consi=
stent=20
with the idea that a lawsuit must first show that it has merit before the=20
anonymous interests of the defendant would be compromised. Of course, such r=
easoning=20
presupposes that the anonymous user was first notified of the pending claim=20
for disclosure by the ISP. Absent such notice, the argument cannot be presen=
ted.=20
So, the question that remains is not as much one of an invasion of privacy a=
s=20
it is one of due process and whether an ISP should be required to provide=20
notice of a pending subpoena in order to permit the defendant a fair opportu=
nity=20
to assert applicable Fourth Amendment arguments.=20
Courts preceding John Doe v. 2THEMART.COM had begun to explore the idea of=20
requiring some degree of support for the merits of claims asserted before th=
e=20
court would compel the disclosure of anonymous user identity. In the case, I=
n re=20
Subpoena Deuces Tecum to America Online, Inc., 52 Va. Cir. 26 (2000)[<A HREF=
=3D"http://elj.warwick.ac.uk/jilt/02-2/#fn7">7</A>], a=20
lower court in Virginia found that:
'the right to communicate anonymously on the Internet falls within the scope=
=20
of the protections afforded by the First Amendment. [But that] the First=20
Amendment [did] not absolutely protect [a defamatory statement] made anonymo=
usly=20
nor the release of confidential inside information' (at 38).=20
America Online had argued that the subpoena to uncover the identity of is=20
anonymous user should be dismissed on the basis of First Amendment concerns.=
=20
However, the court held that the subpoena should stand and that any Constitu=
tional=20
issues, whether based on the First or the Fourth Amendments, would be more=20
properly raised the affected party, i.e., the anonymous user and not the ISP=
.=20
The court based its reasoning on the fact that the user was actually the=20
affected party and that disclosure would ordinarily be warranted absent a sh=
owing=20
that the subpoena would have an oppressive effect on the ISP.=20
The decisional structure of the In re Subpoena Deuces Tecum to America Onlin=
e=20
decision was revisited in Dendrite International, Inc. v. Does, 342 N. J.=20
Super. 134 (2001), when a New Jersey state court was asked to issue a subpoe=
na to=20
Yahoo! seeking to compel disclosure of the identity of an Internet user in=20
support of its claims of misappropriation of trade secrets, breach of contra=
ct=20
and fiduciary duty, and defamation. In framing its decision, the Dendrite co=
urt=20
in a lengthy opinion, made reference to a California case, Columbia Ins. Co.=
=20
v. Seescandy.com, 185 F.R.D 573 (N.D. Cal. 1999), which had developed a=20
four-prong test that a plaintiff must first satisfy before a court will comp=
el=20
issuance of a subpoena for identity disclosure. Interestingly, the Seescandy=
.com=20
case did not center on an act of defamation; but, instead, concerned the all=
eged=20
violation of a registered trademark. The plaintiff in Seescandy.com, Columbi=
a=20
Ins., was the assignee of various trademarks including one for 'See's Candy=20
Shops, Inc'. The plaintiff argued that the defendant, Seescandy.com, had=20
purposely violated the various trademark interests of the plaintiff includin=
g the=20
misappropriation of the plaintiff's right to the 'Seescandy.com' domain name=
.=20
The need for a subpoena to compel disclosure arose, because the plaintiff di=
d=20
not know who had registered the website name, i.e; Seescandy.com, since the=20=
site=20
owner had used an alias when registering. The defendant, Seescandy.com,=20
argued that there was then no law that prohibited the selection of the domai=
n name=20
that it chose and that a compelled disclosure of the registrant's name was=20
unwarranted and unnecessary. The court found that since there was no apparen=
t=20
infringement on the trademark interests of the plaintiff there was really no=
need=20
to compel disclosure of the anonymous registrant's true identity. In reachin=
g=20
its conclusion, the court had formulated the four-prong test, which the=20
Dendrite court discussed and adopted.=20
The court in Seescandy.com held that a plaintiff seeking to unmask the autho=
r=20
of an anonymous Internet message posting must satisfy four separate and=20
distinct criteria before a court will compel disclosure by subpoena:=20
First, the plaintiff must 'identify the missing [anonymous] party with=20
sufficient specify that the Court can determine that the defendant is a real=
person=20
or entity who can be sued in federal court' (at 586).=20
Second, that all steps taken in the plaintiff's attempt to locate the=20
defendant must be detailed (at 586). This is a fairly easily satisfied eleme=
nt as=20
most ISP's now routinely resist disclosure of the identity of anonymous user=
s=20
absent some of form of compulsory process.=C2=A0=20
Third, the plaintiff must establish that its lawsuit 'could withstand a=20
motion to dismiss' (at 586). This criteria is important since the court felt=
it=20
necessary to 'prevent abuse of [the] extraordinary application of the discov=
ery=20
process and to ensure that [the] plaintiff has standing to pursue an action=20
against the defendant' (at 586).
Fourth, the plaintiff must file the discovery request with the court and sho=
w=20
that the discovery is narrowly crafted to yield only information identifying=
=20
the poster (at 586).=20
Although the court in Dendrite professed to apply the Seescandy.com four-par=
t=20
analysis, it actually required the plaintiff to prove a prima facie case=20
before it would be able to obtain a subpoena to compel discovery of the iden=
tity=20
of an anonymous user. In other words, the court felt that mere allegations o=
f a=20
defamatory injury were not sufficient; and, that a required element of the=20
plaintiff's case should be actual proof of an injury to its business reputat=
ion.=20
This principle as supported when the appellate court reviewing the lower=20
court decision in Dendrite wrote that 'the trial court must consider and dec=
ide=20
those applications by striking a balance between the well-established First=20
Amendment right to speak anonymously, and the right of the plaintiff to prot=
ect=20
its proprietary interests and reputation through assertion of recognizable=20
claims based on actionable conduct of anonymous, fictitiously-named defendan=
ts' (
Dendrite International, Inc. v. JohnDoe, No. 3, A-2774-00T3 (July11, 2001)).=
In=20
effect, the Dendrite appellate decision has affirmed the requirement for a=20
plaintiff to notify the anonymous user that they are the subject of a subpoe=
na;=20
and, that the plaintiff provide the actual comments inferred as defamatory,=20=
acco
mpanied by some reasonable proof of the viability of the claims asserted.=
=C2=A0=20
4. Current and Evolving Trends in Cybersmearing Cases=20
The conflicts posed by Internet anonymity obviously require that a balance b=
e=20
struck between its benefits and its potential abuses. From a purely=20
Constitutional perspective, it is evident that the balance should be heavily=
weighted=20
toward the preservation of free and unimpeded online expression. As the US=20
Supreme Court has noted:
'the right to remain anonymous may be abused when it shields fraudulent=20
conduct. But...our society accords greater weight to the value of free speec=
h than=20
to the dangers of its misuse' (McIntyre v. Ohio Elections Commission, 514=20
US334 (1995)).=20
To date, most defendants grappling with the defense to a disclosure subpoena=
=20
have asserted arguments sufficient only to resist the plaintiff and have=20
ignored an equally fundamental alternative, namely whether or not abusive us=
e of=20
the discovery process by the plaintiff constitutes, in and of itself, the ba=
sis=20
for a responsive cause of action sounding in tort. In many instances, the re=
al=20
purpose underlying many cybersmear suits is merely to unearth identifying=20
information so that a corporate plaintiff can confirm its suspicions and ini=
tiate=20
some form of non-judicial action, such as the termination of an employee=20
suspected as the offending anonymous poster. And, once the discovery into th=
e=20
identity of the anonymous poster is completed, the lawsuit is quietly droppe=
d. A=20
number of authors and free speech advocates refer to these types of actions=20=
as=20
'cyber-SLAPP' suits, the online equivalent of 'strategic lawsuits against=20
public participation' (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Gallag=
her">Gallagher, 2000</A>). These authors maintain that such suits=20
are not intended to vindicate valid legal claims, but instead, to invoke=20
punitive sanctions against offenders over whom the corporate plaintiff can e=
xert some=20
degree of authority or control. Such punitive intent might support a tortuou=
s=20
claim for abuse of process against the corporate plaintiff if persuasive=20
arguments can be crafted to credibly emphasize the vindictive intent motivat=
ing=20
the plaintiff's discovery lawsuit. After all, if the only remedy that the=20
plaintiff seeks to achieve is some form of non-judicial relief, such as empl=
oyee=20
termination, then how can the corporate plaintiff maintain a cause of action=
for=20
disclosure alleging damage from defamatory statements that it fully intends=20=
to=20
ultimately ignore?
Further, if employee termination is the ultimate objective of the corporate=20
plaintiff in a cybersmear lawsuit, the manner and means of that termination=20=
may=20
well lead to tortuous claims for wrongful termination especially if the=20
cybersmear basis for such termination is not a clearly defined cause for=20
termination as indicated in promulgated employment policies, procedures, han=
dbooks, and=20
materials. Further, selective enforcement of termination policies and=20
procedures might additionally evidence a discriminatory intent applied throu=
gh=20
arbitrary, capricious, or subjective conduct.=20
Legislatively, statutory protection for the online privacy of individuals wh=
o=20
use the Internet has been introduced in the US Senate in the form of a=20
proposed bill entitled as the Online Personal Privacy Act (2002 S. 2001; 107=
S.=20
2201, April 18, 2002). The bill is currently being debated in the Senate Com=
mittee=20
on Commerce, Science, and Transportation. The bill's ultimate passage is=20
uncertain, particularly as its language does not clearly establish standards=
or=20
criteria for distinguishing civil claims having merit from those lacking mer=
it=20
in pursuit of remedies against anonymous posters.=C2=A0=20
5. Conclusion
In conclusion, it is clear that some measure of judicial oversight should be=
=20
brought to the discovery process even when John Doe defendants are unable to=
=20
retain counsel to defend their anonymity. Whether this oversight should take=
=20
the form of specific requirements imposed on the corporate plaintiff or reme=
dies=20
extended to the aggrieved defendant is unclear. However, it is clear that al=
l=20
parties affected will continue to struggle with the balance of free=20
expression and the protection of legitimate corporate interests until such t=
ime as a=20
judicial consensus is achieved regarding the legitimacy of cybersmear claims=
at=20
the outset of a corporate plaintiff's cause of action.=C2=A0 Absent such=20
legitimacy, the right of Constitutionally protected free expression will mos=
t likely=20
prevail.=C2=A0=20
FAMILY=3D"SANSSERIF" FACENotes and References
1. Pub.L. 104-104, 110 Stat. 137-139, 47 U.S.C. S. 230 provides, in relevant=
=20
part, that 'no provider...of an interactive computer service shall be treate=
d=20
as the publisher or speaker of any information provided by another informati=
on=20
content provider, 47 U.S.C.S. 230(c)(1). See also Zeran v. America Online,=20
Inc., 129 F.3d 327, 331 (4th Cir. 1997), holding that claims against ISP's w=
ere=20
barred by the Communications Decency Privacy Act. Also, Ben Ezra, Weinstein,=
=20
and Company, Inc. v. America Online, Incorporated, 206 F.3d 980 (10th Cir=20
2000), were the court found that America Online had not acted as an informat=
ion=20
provider outside the scope of s. 230 immunity when it provided access to=20
allegedly inaccurate information regarding Ben Ezra, Weinstein, and Company'=
s publicly=20
traded stock.=20
2. But, such immunity is not without cost, including the cost of legal fees.=
=20
Moreover, such immunity does not immunize websites that link to allegedly=20
defamatory sites; nor is immunity provided for such claims based on invasion=
s of=20
intellectual property or privacy rights.=20
3. It is interesting to note that most cybersmearing cases are filed in stat=
e=20
court, because it is often times impossible to plead either the federal=20
jurisdictional principle of diversity of citizenship against a defendant who=
se=20
identity and residence are unknown or federal question jurisdiction where a=20=
basis=20
for invoking any federal law is generally lacking.=20
4. For listings, see Cyber Securities Law Case Digest, at <<A HREF=3D"http:/=
/www.cybersecuritieslaw.com/">
http://www.cybersecuritieslaw.com</A>> (search term: 'cyber lawsuits').
5. 18 U.S.C. S. 2510 et seq. (The statute is a 1986 revision to federal=20
wiretap laws necessitated by emerging advances in communication including th=
e=20
Internet.)=20
6.supra n1.=20
7. rev'd on other grounds sub. nom. America Online, Inc. v.=C2=A0 Anonymous=20
Publicly Traded Company, 542 S.E. 2d 377 (Va.2001). FAMILY=3D"SANSSERIF" FAC=
E=3D
Bibliography
(June 2001) 'CEO's E-Attack on Collection agency Brings SEC Cybersmear Suit,=
=20
Sanctions', E-Business Law Bulletin 16.=20
(May 17, 2000) 'Creditrust Corp. Files Cybersmear Suit Against Insurer',=20
Securities Litigation and Regulation 5.
(June 26, 2000) 'Suit Said to Be First to Smoke Out Competitor For Alleged=20
Cybersmear', Delaware Corporate Litigation Reporter 8.
Bell, B A (1999) 'Dealing with the 'Cybersmear'', New York Journal, April 19=
,=20
1999.=20
Buckingham, S R and Rubin, A R (2001), 'Anonymous 'Posters' Complicate=20
Discovery', New York Law Journal 4, November 29, 2001.
Elkin, J (2001), 'Cybersmears: The Next Generation: Advocacy Groups Seek to=20
Protect the Identities of Company Critics', Business Law Today 42, July/Augu=
st=20
2001.
Gallagher, M P (2000), 'In Cybersmear or CyberSLAPP Suits, Discovery Means=20
Finding a Defendant', New Jersey Law Journal, July 31, 2000.
Goldhader, M D (2000), 'Cybersmear Pioneer', The National Law Journal A20,=20
July 17, 2000.
Keaveney, R (2001), The Daily Record 3A, March 9, 2001.
Pizzi, P (2001), 'Intellectual Property Grappling with 'Cybersmear' Right to=
=20
Protect From Cybersmear is Balanced Against the Perceived First Amendment=20
Rights of Anonymous Internet 'Posters' , New Jersey Law Journal, July 23, 20=
01.
Scheffey, T (2000), 'Unmasking Internet Bad-Mouths', The Connecticut Law=20
Tribune, December 18, 2000.
Serres, C (2000), 'Unmasked 'Aquacool' fires back with suit', Crain's=20
Cleveland Business 1, June 5, 2000.=20
Sobel, D L (2000) 'The Process that 'John Doe' is Due: Addressing the Legal=20
Challenge to Internet Anonymity', Virginia Journal of Law and Technology, 5=20=
Va.=20
J.L.& Tech. 3.
Walton, T J (2000), 'Internet Privacy Law', <<A HREF=3D"http://www.netatty.c=
om/privacy/privacy.html">
http://www.netatty.com/privacy/privacy.html</A>>, (3/12/2000).
=C2=A0
=C2=A0
| <A HREF=3D"http://elj.warwick.ac.uk/">ELJ</A> | <A HREF=3D"http://elj.warw=
ick.ac.uk/jilt/">JILT</A> | <A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/">=
THIS ISSUE</A> | <A HREF=3D"http://elj.warwick.ac.uk/jilt/search/">SEARCH</A=
> | <A HREF=3D"mailto:jilt@warwick.ac.uk">COMMENTS</A> |
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=20
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<HTML><FONT FACE=3Darial,helvetica><FONT SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=
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</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D5=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Post only what you know for=20=
sure, or hold till till it might be needed. Do not say anything that c=
an not be proven at this time. first legal opinion will be posted Mond=
ay or Tuesday.<BR>
<BR>
Richard</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" S=
IZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
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<IMG SRC=3D"http://elj.warwick.ac.uk/jilt/02-2/topbar1.gif" WIDTH=3D"446" H=
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<BR>
<P ALIGN=3DCENTER></FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR:=
#ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
</FONT><FONT COLOR=3D"#003366" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Contents</FONT><FONT COL=
OR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSE=
RIF" FACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
<BR>
<BR>
<P ALIGN=3DLEFT></FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #=
ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0</FONT=
><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMIL=
Y=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><A HREF=3D"http://elj.wa=
rwick.ac.uk/jilt/02-2/#Abstract">Abstract</A></FONT><FONT COLOR=3D"#000000"=
style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"A=
rial" LANG=3D"0"><BR>
<BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D1=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">1.</FONT><FONT COLOR=3D"#00=
0000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><A HREF=3D"http://elj.wa=
rwick.ac.uk/jilt/02-2/#1">Introduction</A></FONT><FONT COLOR=3D"#000000" st=
yle=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Aria=
l" LANG=3D"0"><BR>
<BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D1=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">2.</FONT><FONT COLOR=3D"#00=
0000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><A HREF=3D"http://elj.wa=
rwick.ac.uk/jilt/02-2/#2">History and Issues Surrounding Cybersmearing</A></=
FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 F=
AMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D1=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">3.</FONT><FONT COLOR=3D"#00=
0000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><A HREF=3D"http://elj.wa=
rwick.ac.uk/jilt/02-2/#3.">Key Cybersmearing Cases</A></FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D1=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">4.</FONT><FONT COLOR=3D"#00=
0000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><A HREF=3D"http://elj.wa=
rwick.ac.uk/jilt/02-2/#4">Current and Evolving Trends in Cybersmearing Cases=
</A></FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D1=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">5.</FONT><FONT COLOR=3D"#00=
0000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><A HREF=3D"http://elj.wa=
rwick.ac.uk/jilt/02-2/#5">Conclusion</A></FONT><FONT COLOR=3D"#000000" styl=
e=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial"=
LANG=3D"0"><BR>
<BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><A HREF=3D"http://elj.wa=
rwick.ac.uk/jilt/02-2/#Notes and References">Notes and References</A></FONT>=
<FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=
=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
<BR>
<P ALIGN=3DCENTER><IMG SRC=3D"http://elj.warwick.ac.uk/jilt/02-2/WORD6_BULL=
ET.gif" WIDTH=3D"18" HEIGHT=3D"18" BORDER=3D"0"></FONT><FONT COLOR=3D"#0000=
00" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0">=C2=A0</FONT><FONT COLOR=3D"#003366" style=3D"BACKGRO=
UND-COLOR: #ffffff" SIZE=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=
<B><A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/rtfs/naples.rtf">Download</=
A></FONT><FONT COLOR=3D"#003366" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D1 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"> </FONT><FONT COLOR=3D"=
#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" F=
ACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
<P ALIGN=3DLEFT> <BR>
<P ALIGN=3DCENTER></FONT><FONT COLOR=3D"#003366" style=3D"BACKGROUND-COLOR:=
#ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Cybersm=
earing: A Legal Conflict Between Individuals and Corporations<BR>
=C2=A0</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SI=
ZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT COLOR=3D"#660000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Gregory J. Naples<BR>
</B>Associate Professor<BR>
Department of Accounting<BR>
Marquette University<BR>
Milwaukee USA<BR>
<A HREF=3D"mailto:gregory.naples@marquette.edu">gregory.naples@marquette.edu=
</A><BR>
=C2=A0</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SI=
ZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#660000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Meredith Maher<BR>
</B>Graduate Research Assistant<BR>
Department of Accounting<BR>
Marquette University<BR>
Milwaukee USA<BR>
<A HREF=3D"mailto:meredith.maher@marquette.edu">meredith.maher@marquette.edu=
</A><I><I> </FONT><FONT COLOR=3D"#660000" style=3D"BACKGROUND-COLOR: #fffff=
f" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"></I><BR>
=C2=A0</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SI=
ZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
<P ALIGN=3DLEFT></FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #=
ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Abstract<=
/FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3=20=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Cybersmearing is the act of=20=
anonymous communication of false information about a corporation over the In=
ternet, which causes economic damages. Initially, Internet Service Providers=
(ISPs) were concerned with their legal liability, which was limited by the=20=
Communication Decency Act of 1996. Next, courts in the United States struggl=
ed with how to compensate corporations from the anonymous acts. The courts i=
ssued subpoenas to the ISPs to determine the true identity of the anonymous=20=
user and then proceed with the case. However, currently the federal and stat=
e courts in the United States are struggling with the balance between Intern=
et privacy and corporate defamation. First Amendment rights ensure that Inte=
rnet users can communicate freely; however, United States Tort law ensures t=
hat corporations have the right to protect their reputations. Hundreds of ca=
ses have been filed relating to this topic; however, most are voluntarily di=
smissed after the anonymous party's identity has been revealed. Current tren=
ds show federal courts are formalizing the process to issue subpoenas to det=
ermine the true identity of Internet users and courts are now applying a str=
icter view to protect First Amendment rights.</FONT><FONT COLOR=3D"#000000"=
style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"A=
rial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Keywords:</B> Cybersmeari=
ng, Defamation, Corporations, Privacy, Regulation, ISPs.</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">This is a <B>Refereed articl=
e</B> published on 16 August 2002.</FONT><FONT COLOR=3D"#000000" style=3D"B=
ACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=
=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Citation:</B> Naples G J=20=
and Maher M, 'Cybersmearing: A Legal Conflict between Individuals and Corpor=
ations', Refereed article, <I>The Journal of Information, Law and Technology=
(JILT)</I> <A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/">2002 (2)</A>, &l=
t;http://elj.warwick.ac.uk/jilt/02-1/naples.html>. </FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<B>1. Introduction</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR:=
#ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">With the introduction and ra=
pid evolution of the Internet, users have been provided an elective, often a=
nonymous, electronic platform to globally communicate their ideas, beliefs,=20=
and commentary, whether factual or not (<A HREF=3D"http://elj.warwick.ac.uk/=
jilt/02-2/#Sobel">Sobel, 2000</A>). The perceived anonymity of the Internet=20=
enables many users to publish messages that they otherwise might not have se=
nt were attribution to them readily feasible (<A HREF=3D"http://elj.warwick.=
ac.uk/jilt/02-2/#Pizzi">Pizzi, 2001</A>). As the US Supreme Court explained=20=
in <U>Reno v. American Civil Liberties Union</U>, 521 US844, 870 (1997):</FO=
NT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAM=
ILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0'through the use of ch=
at rooms, any person with a phone line can become a town crier with a voice=20=
that resonates farther than it could from any soap box,' </FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">with the afterthought being=20=
that the 'town crier' can remain virtually anonymous, at will. Nevertheless,=
with the advent of diverse forms of increasingly sophisticated electronic t=
echnology anonymity is more an illusion than a reality as anonymous message=20=
posters have come to realize that they leave behind electronic 'fingerprints=
' each time that they send a message (<A HREF=3D"http://elj.warwick.ac.uk/ji=
lt/02-2/#Bell">Bell, 1999</A>). With the assistance and cooperation of Inter=
net Service Providers (ISP's) or web-site owners, the identity of a message=20=
poster can be traced to the source computer thereby vaporizing any notion of=
perceived anonymity. Initially, corporations that believed themselves to ha=
ve been unfairly attacked in the electronic mail medium sued ISPs claiming l=
iability damages for having provided the mechanical platform that facilitate=
d the distribution of allegedly defamatory information. ISPs quickly reacted=
arguing that they had no control over the unilateral actions of their users=
; and, hence, should be accorded no less legal liability protection than tha=
t enjoyed by telephone companies. The US Congress supported this position wh=
en it enacted the Communications Decency Privacy Act of 1996[<A HREF=3D"http=
://elj.warwick.ac.uk/jilt/02-2/#fn1">1</A>]</FONT><FONT COLOR=3D"#000000" s=
tyle=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Ari=
al" LANG=3D"0"> to immunize ISPs from most defamatory liabilities[<A HREF=
=3D"http://elj.warwick.ac.uk/jilt/02-2/#fn2">2</A>]</FONT><FONT COLOR=3D"#0=
00000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FAC=
E=3D"Arial" LANG=3D"0">. </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND=
-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR=
>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">The act of communicating a f=
alse, disparaging, or defamatory remark about a company, its management or s=
tock, on the Internet has come to be referred to as 'cybersmearing' (<A HREF=
=3D"http://elj.warwick.ac.uk/jilt/02-2/#Buckingham">Buckingham and Rubin, 20=
01</A>). Although the term has yet to be defined by a court, it has become s=
omewhat expansive in use, including its reference as descriptive of the proc=
ess through which corporations suffer damages when a poster defames or dispa=
rages it on the Internet (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Gol=
dhader">Goldhaber, 2000</A>). </FONT><FONT COLOR=3D"#000000" style=3D"BACKG=
ROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0=
"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Cybersmearing has caused the=
United States judicial system to discuss various theories and methodologies=
on how to balance a number of contrasting views including: the public's Con=
stitutionally guaranteed First Amendment right to free speech and the amorph=
ous notion of 'privacy' versus the corporation's right to protect itself fro=
m disparagement and the unauthorized distribution of proprietary information=
. During the last three years, cybersmearing has significantly impacted the=20=
economic conditions of hundreds of companies and thus, has resulted in a mul=
titude of federal and state[<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#f=
n3">3</A>]</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff=
" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"> court cases[<A HR=
EF=3D"http://elj.warwick.ac.uk/jilt/02-2/#fn4">4</A>]</FONT><FONT COLOR=3D"=
#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" F=
ACE=3D"Arial" LANG=3D"0">. </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROU=
ND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><=
BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">The first part of this paper=
provides a discussion of the legal issues and history surrounding cybersmea=
ring. The second section describes key federal and state court decisions tha=
t are evolving as the foundation for cybersmear litigation. The last section=
provides a summary of current and evolving trends in cybersmearing cases. <=
/FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3=20=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>2. History and Issues Sur=
rounding Cybersmearing</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-CO=
LOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"></B><B=
R>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><I>Anonymity</I>. Although t=
he personal privacy interest in controlling the disclosure of an individual'=
s identity is evident, often overlooked is the significance of anonymity in=20=
fostering individuality through free expression. The protection afforded by=20=
anonymity is magnified in the context of the Internet, because of the non-qu=
antifiable number of opportunities to both publish and to receive informatio=
n (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Sobel">Sobel, 2000</A>). A=
s has been noted by many, the expressive power of the Internet, although lon=
g appreciated by its users, has only recently attained constitutional status=
when the USSupreme Court handed down its decision in <U>Reno v. ACLU</U>, d=
efining the scope of the Internet's First Amendment protection and finding:<=
/FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3=20=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0'no basis for qualifyi=
ng the level of First Amendment scrutiny that should be applied to this medi=
um' (521 US844, 870 (1997), aff'd, 929 F. Supp. 824 (E.D. Pa. 1996)). </FONT=
><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMIL=
Y=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Despite the invocation of th=
e First Amendment, anonymity cannot be considered an absolute guarantee of f=
ree expression when that expression serves to advocate damaging, illegal, or=
indefensible conduct. The nondisclosure of identity is often times critical=
for Internet message posters, particularly when engaged in discussions or p=
ostings that include topics concerning corporate financial shenanigans, mark=
etplace deception, employment discrimination, and questionable business prac=
tices. When such messages stray into the area of criminal activity, the Elec=
tronic Communications Privacy Act (EPCA)[<A HREF=3D"http://elj.warwick.ac.uk=
/jilt/02-2/#fn5">5</A>]</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-C=
OLOR: #ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"> is a=
vailable to federal law enforcement authorities seeking the actual content o=
f a communication, such as the actual text of an email message or posting. W=
ith the oversight provided by judicial scrutiny, law enforcement authorities=
can request the issuance of a warrant and a subpoena, if necessary, to comp=
el ISPs to disclose information that identifies a particular Internet user o=
r subscriber. Heretofore, law enforcement use of the ECPA has occasionally r=
aised Constitutional concerns regarding privacy and unlawful seizures, but s=
uch concerns have largely been muted by the impact of the September 11th ter=
rorist attacks in the United States. </FONT><FONT COLOR=3D"#000000" style=
=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial"=20=
LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">What remains, however, is se=
rious concern regarding non-governmental, non-law enforcement access to user=
identity information and whether the language of the ECPA fosters such acce=
ss where it provides that an ISP:</FONT><FONT COLOR=3D"#000000" style=3D"BA=
CKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=
=3D"0"> <BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0'<B>may</B> disclose a=
record or information pertaining to a subscriber...to any person <B>other t=
han a governmental entity</B>'(emphasis added) (18 U.S.C.S. 2703 (c) (1) (A)=
). </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">The extent to which such dis=
closure threatens First Amendment privacy rights is the focus of legislative=
discussion in the US Congress where the Consumer Internet Privacy Protectio=
n Act of 1999 has been introduced in the US House of Representatives in an a=
ttempt to limit the distribution of personal information by an ISP (1999 H.R=
. 313; 106 H.R. 313).</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COL=
OR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Nevertheless, the growth of=20=
the Internet and its ubiquitous nature combined with the perceived urgency o=
f those other than criminal investigators seeking to unmask online anonymity=
poses serious challenges to issues involving personal privacy and the lack=20=
of statutory protection afforded by the ECPA. Increasingly, civil lawsuits a=
re being filed by corporations that have been the targets of critical inform=
ation posted to online message boards, hosted at websites such as The Motley=
Fool, Yahoo! Finance, and others, seeking the identity of, and information=20=
about, anonymous Internet users. Often times financially-related websites pr=
ovide readily accessible forums for the exchange of misleading, damaging, or=
self-serving information on publicly traded companies. Companies concerned=20=
about the dissemination of information that is considered damaging and the e=
ffects of such dissemination in the marketplace, particularly on stock price=
s (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Keaveney">Keaveney, 2001</=
A>), are going to court and filing lawsuits against unnamed, or 'John Doe' d=
efendants, seeking to unmask their anonymity in order to assert damage claim=
s allegedly resulting from anonymous postings. Disgruntled employees, dissat=
isfied investors, critical financial commentators, and others are potentiall=
y exposed to civil causes of action ranging from defamation and breach of co=
ntract to misappropriation of proprietary information. </FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">The principal concerns that=20=
emerge from these corporate civil suits are the degree to which due process=20=
and matters of fundamental fairness and privacy can be compromised. Routinel=
y, when a corporation files a civil complaint, a subpoena is served on an IS=
P or message board owner/operator by plaintiff's counsel seeking the identit=
y and related information about the anonymous online poster. The ISP may, or=
may not, notify their user that a subpoena has been received. When notice i=
s provided, the user is presumably provided an opportunity to challenge the=20=
process in an attempt to quash the subpoena. The legal costs and expenses as=
sociated with such challenges, the time constraints posed by the judicial pr=
ocess, and the degree of success anticipated are all issues and matters that=
have to be carefully considered by users seeking to preserve their anonymit=
y. </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">More often than not, ISPs re=
ceiving a court subpoena will simply comply as a matter of course, without a=
ny form of notice to the affected user. As a result, the user has no opportu=
nity to quash the subpoena and the courts have no role in evaluating the pro=
priety of the request for the identifying information sought. It is this pre=
cise absence of judicial involvement and adversarial opportunity that expose=
s the process of discovering the identity of anonymous users to abuse. The d=
elicate balance between the legitimate interests and concerns of corporation=
s seeking identifying information and the instances of potentially abusive d=
iscovery is not easily maintained; nevertheless, the risk from current legal=
standards that allow for lawsuits of questionable merit to be filed simply=20=
to obtain the identify of anonymous users can easily fall into the gap of un=
intended consequences that can stifle, deter, or eventually silence even jus=
tifiable corporate criticism. </FONT><FONT COLOR=3D"#000000" style=3D"BACKG=
ROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0=
"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Emerging from the hundreds o=
f lawsuits being filed by corporate plaintiffs eager to discover the identit=
y of anonymous Internet users is a core of legal theories that center on arg=
uments in support of defamation, and the unauthorized use of proprietary inf=
ormation. This latter theory is often supplemented by claims of breach of an=
employment contract, whether oral or written. In defense, users have assert=
ed arguments premised on First Amendment claims of free expression and invas=
ion of privacy, and on notions of fundamental due process, particularly when=
the discovery of their identity results in an employment termination. Of eq=
ual concern is the degree to which the allegedly wrongful statements actuall=
y pose a viable cause of action. This latter is most often posed in the cont=
ext of a defense to a defamation claim and the need for the plaintiff to sho=
w actual harm in order to proceed. The degree to which courts will invoke a=20=
requirement of actual harm before permitting a plaintiff to proceed on a dis=
covery claim is currently under debate, but seems to be an evolving decision=
al theory that is gaining support as the result of the <U>Dendrite Internati=
onal</U> holding discussed later in this paper. </FONT><FONT COLOR=3D"#0000=
00" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>3. Key Cybersmearing Case=
s</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><I>ISP liability</I>. The <U=
>Reno v. American Civil Liberties Union</U>, 521 US844 (1997), noted at the=20=
outset of this paper, was a key decision in support of exempting ISPs from v=
icarious liability for the actions of users; and, again as noted earlier, th=
e US Congress codified this principle with the adoption of the Communication=
s Decency Privacy Act of 1996[<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/=
#fn6">6</A>]</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffff=
ff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">. However, it is=
important to note that neither the <U>Reno v. ACLU</U> nor the Communicatio=
ns Decency Privacy Act completely absolves the ISP from any and all liabilit=
y for the actions of its users. ISPs can still be held exposed to copyright=20=
infringement liability by its users and for those types of communications de=
emed obscene (18 U.S.C.S. 2710). And, at least one commentator has suggested=
that ISPs could be held vicariously liable, even without knowledge, when ei=
ther the website designer, the website owner, or the ISP:</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">(1) has the right and abilit=
y to <B>control</B>, the infringer's acts; or </FONT><FONT COLOR=3D"#000000=
" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"=
Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">(2) receives a <B>direct fin=
ancial benefit</B>=E2=80=9A from the infringement (<A HREF=3D"http://elj.war=
wick.ac.uk/jilt/02-2/#Walton">Walton, 1999</A>). </FONT><FONT COLOR=3D"#000=
000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">This suggestion does not rea=
lly carve out any new law as both the Restatement of Torts Third and common=20=
law have both recognized the imputed knowledge concept in the context of act=
ual and apparent agency. What is significant, though, is the fact that ISPs=20=
will have to continually develop increasingly sophisticated technologies to=20=
monitor the usage activities of users with judicial scrutiny then shifting t=
o the adequacy of such technologies. The less adequate technologies are deem=
ed the more likely that vicarious liability for negligence will be asserted.=
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT>owledge concept in the context of actual and apparent agency. What is=
significant, though, is the fact that ISPs will have to continually develop=
increasingly sophisticated technologies to monitor the usage activities of=20=
users with judicial scrutiny then shifting to the adequacy of such technolog=
ies. The less adequate technologies are deemed the more likely that vicariou=
s liability for negligence will be asserted. </FONT><FONT COLOR=3D"#000000"=
BACK=3D"#ffffff" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 PTSIZE=3D12 F=
AMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
<FONT COLOR=3D"#000000" BACK=3D"#f FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=
=3D"0"><I>Invasion of privacy based on freedom from warrantless search or se=
izure</I>. United States law has long recognized the application of the Four=
th Amendment to preclude warrantless searches and seizures, provided that th=
ere is neither probable cause (a criminal standard) nor areas on able expect=
ation of privacy (a civil standard) (US. v. Katz). Absent a reasonable expec=
tation of privacy, files stored on an Internet Service Provider's server may=
not be protected by the Fourth Amendment and that the consent of the ISP is=
all that is required for plaintiff's to have access to the identity and inf=
ormation of anonymous users. </FONT><FONT COLOR=3D"#000000" style=3D"BACKGR=
OUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"=
><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">In <U>John Doe v. 2THEMART.C=
OM Inc</U>., 140 F. Supp. 2d 1088 (2001), the United States District Court f=
or the Western District of Washington directly addressed the issue of the ri=
ght of privacy of 'John Doe' making accusations of fraud versus the right of=
a corporation to protect itself from what it asserted were the defamatory i=
mplications of such statements. John Doe argued that anonymity on the Intern=
et was a right protected by the First Amendment and that compelled disclosur=
e of his identity was an unconstitutional invasion of his privacy. 2THEMART.=
COM argued that the statements were defamatory and, by definition, unprotect=
ed by the Fourth Amendment. In its decision, the court took the position tha=
t:</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">'the Internet represents a r=
evolutionary advance in communication technology...It allows people from all=
over the world to exchange ideas and information freely' (at page 1101). </=
FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 F=
AMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">The court noted that the iss=
ues raised in this case challenge the scope of an individual's First Amendme=
nt rights and, thus, challenged the court to clarify the degree of proof tha=
t must first be demonstrated by the corporate plaintiff in support of its de=
famatory cause of action. In other words, the court was not convinced that m=
ere allegations of defamation alone were sufficient to outweigh the defendan=
t's right to remain anonymous. A showing that the statements made were such=20=
as to reasonably constitute defamation might first be required before disclo=
sure would be compelled. Such reasoning would be consistent with the idea th=
at a lawsuit must first show that it has merit before the anonymous interest=
s of the defendant would be compromised. Of course, such reasoning presuppos=
es that the anonymous user was first notified of the pending claim for discl=
osure by the ISP. Absent such notice, the argument cannot be presented. So,=20=
the question that remains is not as much one of an invasion of privacy as it=
is one of due process and whether an ISP should be required to provide noti=
ce of a pending subpoena in order to permit the defendant a fair opportunity=
to assert applicable Fourth Amendment arguments. </FONT><FONT COLOR=3D"#00=
0000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=
=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Courts preceding <U>John Doe=
v. 2THEMART.COM</U> had begun to explore the idea of requiring some degree=20=
of support for the merits of claims asserted before the court would compel t=
he disclosure of anonymous user identity. In the case, <U>In re Subpoena Deu=
ces Tecum to America Online, Inc.</U>, 52 Va. Cir. 26 (2000)[<A HREF=3D"http=
://elj.warwick.ac.uk/jilt/02-2/#fn7">7</A>]</FONT><FONT COLOR=3D"#000000" s=
tyle=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2 FAMILY=3D"SANSSERIF" FACE=3D"Ari=
al" LANG=3D"0">, a lower court in Virginia found that:</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">'the right to communicate an=
onymously on the Internet falls within the scope of the protections afforded=
by the First Amendment. [But that] the First Amendment [did] not absolutely=
protect [a defamatory statement] made anonymously nor the release of confid=
ential inside information' (at 38). </FONT><FONT COLOR=3D"#000000" style=
=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial"=20=
LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">America Online had argued th=
at the subpoena to uncover the identity of is anonymous user should be dismi=
ssed on the basis of First Amendment concerns. However, the court held that=20=
the subpoena should stand and that any Constitutional issues, whether based=20=
on the First or the Fourth Amendments, would be more properly raised the aff=
ected party, i.e., the anonymous user and not the ISP. The court based its r=
easoning on the fact that the user was actually the affected party and that=20=
disclosure would ordinarily be warranted absent a showing that the subpoena=20=
would have an oppressive effect on the ISP. </FONT><FONT COLOR=3D"#000000"=20=
style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Ar=
ial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">The decisional structure of=20=
the <U>In re Subpoena Deuces Tecum to America Online</U> decision was revisi=
ted in <U>Dendrite International, Inc. v. Does</U>, 342 N. J. Super. 134 (20=
01), when a New Jersey state court was asked to issue a subpoena to Yahoo! s=
eeking to compel disclosure of the identity of an Internet user in support o=
f its claims of misappropriation of trade secrets, breach of contract and fi=
duciary duty, and defamation. In framing its decision, the <U>Dendrite</U> c=
ourt in a lengthy opinion, made reference to a California case, <U>Columbia=20=
Ins. Co. v. Seescandy.com</U>, 185 F.R.D 573 (N.D. Cal. 1999), which had dev=
eloped a four-prong test that a plaintiff must first satisfy before a court=20=
will compel issuance of a subpoena for identity disclosure. Interestingly, t=
he <U>Seescandy.com</U> case did not center on an act of defamation; but, in=
stead, concerned the alleged violation of a registered trademark. The plaint=
iff in <U>Seescandy.com</U>, Columbia Ins., was the assignee of various trad=
emarks including one for 'See's Candy Shops, Inc'. The plaintiff argued that=
the defendant, Seescandy.com, had purposely violated the various trademark=20=
interests of the plaintiff including the misappropriation of the plaintiff's=
right to the 'Seescandy.com' domain name. The need for a subpoena to compel=
disclosure arose, because the plaintiff did not know who had registered the=
website name, i.e; Seescandy.com, since the site owner had used an alias wh=
en registering. The defendant, Seescandy.com, argued that there was then no=20=
law that prohibited the selection of the domain name that it chose and that=20=
a compelled disclosure of the registrant's name was unwarranted and unnecess=
ary. The court found that since there was no apparent infringement on the tr=
ademark interests of the plaintiff there was really no need to compel disclo=
sure of the anonymous registrant's true identity. In reaching its conclusion=
, the court had formulated the four-prong test, which the <U>Dendrite</U> co=
urt discussed and adopted. </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROU=
ND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><=
BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">The court in <U>Seescandy.co=
m</U> held that a plaintiff seeking to unmask the author of an anonymous Int=
ernet message posting must satisfy four separate and distinct criteria befor=
e a court will compel disclosure by subpoena: </FONT><FONT COLOR=3D"#000000=
" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"=
Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">First, the plaintiff must 'i=
dentify the missing [anonymous] party with sufficient specify that the Court=
can determine that the defendant is a real person or entity who can be sued=
in federal court' (at 586). </FONT><FONT COLOR=3D"#000000" style=3D"BACKGR=
OUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"=
><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Second, that all steps taken=
in the plaintiff's attempt to locate the defendant must be detailed (at 586=
). This is a fairly easily satisfied element as most ISP's now routinely res=
ist disclosure of the identity of anonymous users absent some of form of com=
pulsory process.=C2=A0 </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-C=
OLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Third, the plaintiff must es=
tablish that its lawsuit 'could withstand a motion to dismiss' (at 586). Thi=
s criteria is important since the court felt it necessary to 'prevent abuse=20=
of [the] extraordinary application of the discovery process and to ensure th=
at [the] plaintiff has standing to pursue an action against the defendant' (=
at 586).</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff"=20=
SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Fourth, the plaintiff must f=
ile the discovery request with the court and show that the discovery is narr=
owly crafted to yield only information identifying the poster (at 586). </FO=
NT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAM=
ILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Although the court in <U>Den=
drite</U> professed to apply the <U>Seescandy.com</U> four-part analysis, it=
actually required the plaintiff to prove a prima facie case before it would=
be able to obtain a subpoena to compel discovery of the identity of an anon=
ymous user. In other words, the court felt that mere allegations of a defama=
tory injury were not sufficient; and, that a required element of the plainti=
ff's case should be actual proof of an injury to its business reputation. Th=
is principle as supported when the appellate court reviewing the lower court=
decision in <U>Dendrite</U> wrote that 'the trial court must consider and d=
ecide those applications by striking a balance between the well-established=20=
First Amendment right to speak anonymously, and the right of the plaintiff t=
o protect its proprietary interests and reputation through assertion of reco=
gnizable claims based on actionable conduct of anonymous, fictitiously-named=
defendants' (<U>Dendrite International, Inc. v. JohnDoe, No. 3</U>, A-2774-=
00T3 (July11, 2001)). In effect, the <U>Dendrite</U> appellate decision has=20=
affirmed the requirement for a plaintiff to notify the anonymous user that t=
hey are the subject of a subpoena; and, that the plaintiff provide the actua=
l comments inferred as defamatory, accompanied by some reasonable proof of t=
he viability of the claims asserted.=C2=A0 </FONT><FONT COLOR=3D"#000000" s=
tyle=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Ari=
al" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>4. Current and Evolving T=
rends in Cybersmearing Cases </FONT><FONT COLOR=3D"#000000" style=3D"BACKGR=
OUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"=
></B><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">The conflicts posed by Inter=
net anonymity obviously require that a balance be struck between its benefit=
s and its potential abuses. From a purely Constitutional perspective, it is=20=
evident that the balance should be heavily weighted toward the preservation=20=
of free and unimpeded online expression. As the US Supreme Court has noted:<=
/FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3=20=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">'the right to remain anonymo=
us may be abused when it shields fraudulent conduct. But...our society accor=
ds greater weight to the value of free speech than to the dangers of its mis=
use' (<U>McIntyre v. Ohio Elections Commission</U>, 514 US334 (1995)). </FON=
T><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMI=
LY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">To date, most defendants gra=
ppling with the defense to a disclosure subpoena have asserted arguments suf=
ficient only to resist the plaintiff and have ignored an equally fundamental=
alternative, namely whether or not abusive use of the discovery process by=20=
the plaintiff constitutes, in and of itself, the basis for a responsive caus=
e of action sounding in tort. In many instances, the real purpose underlying=
many cybersmear suits is merely to unearth identifying information so that=20=
a corporate plaintiff can confirm its suspicions and initiate some form of n=
on-judicial action, such as the termination of an employee suspected as the=20=
offending anonymous poster. And, once the discovery into the identity of the=
anonymous poster is completed, the lawsuit is quietly dropped. A number of=20=
authors and free speech advocates refer to these types of actions as 'cyber-=
SLAPP' suits, the online equivalent of 'strategic lawsuits against public pa=
rticipation' (<A HREF=3D"http://elj.warwick.ac.uk/jilt/02-2/#Gallagher">Gall=
agher, 2000</A>). These authors maintain that such suits are not intended to=
vindicate valid legal claims, but instead, to invoke punitive sanctions aga=
inst offenders over whom the corporate plaintiff can exert some degree of au=
thority or control. Such punitive intent might support a tortuous claim for=20=
abuse of process against the corporate plaintiff if persuasive arguments can=
be crafted to credibly emphasize the vindictive intent motivating the plain=
tiff's discovery lawsuit. After all, if the only remedy that the plaintiff s=
eeks to achieve is some form of non-judicial relief, such as employee termin=
ation, then how can the corporate plaintiff maintain a cause of action for d=
isclosure alleging damage from defamatory statements that it fully intends t=
o ultimately ignore?</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLO=
R: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
style=3D"BACKGROUND-COLOR: #f FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0=
">Further, if employee termination is the ultimate objective of the corporat=
e plaintiff in a cybersmear lawsuit, the manner and means of that terminatio=
n may well lead to tortuous claims for wrongful termination especially if th=
e cybersmear basis for such termination is not a clearly defined cause for t=
ermination as indicated in promulgated employment policies, procedures, hand=
books, and materials. Further, selective enforcement of termination policies=
and procedures might additionally evidence a discriminatory intent applied=20=
through arbitrary, capricious, or subjective conduct. </FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Legislatively, statutory pro=
tection for the online privacy of individuals who use the Internet has been=20=
introduced in the US Senate in the form of a proposed bill entitled as the O=
nline Personal Privacy Act (2002 S. 2001; 107 S. 2201, April 18, 2002). The=20=
bill is currently being debated in the Senate Committee on Commerce, Science=
, and Transportation. The bill's ultimate passage is uncertain, particularly=
as its language does not clearly establish standards or criteria for distin=
guishing civil claims having merit from those lacking merit in pursuit of re=
medies against anonymous posters.=C2=A0 </FONT><FONT COLOR=3D"#000000" styl=
e=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial"=
LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>5. Conclusion</FONT><FONT=
COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"S=
ANSSERIF" FACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">In conclusion, it is clear t=
hat some measure of judicial oversight should be brought to the discovery pr=
ocess even when John Doe defendants are unable to retain counsel to defend t=
heir anonymity. Whether this oversight should take the form of specific requ=
irements imposed on the corporate plaintiff or remedies extended to the aggr=
ieved defendant is unclear. However, it is clear that all parties affected w=
ill continue to struggle with the balance of free expression and the protect=
ion of legitimate corporate interests until such time as a judicial consensu=
s is achieved regarding the legitimacy of cybersmear claims at the outset of=
a corporate plaintiff's cause of action.=C2=A0 Absent such legitimacy, the=20=
right of Constitutionally protected free expression will most likely prevail=
.=C2=A0 </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff"=20=
SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Notes and References</FON=
T><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMI=
LY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">1. Pub.L. 104-104, 110 Stat.=
137-139, 47 U.S.C. S. 230 provides, in relevant part, that 'no provider...o=
f an interactive computer service shall be treated as the publisher or speak=
er of any information provided by another information content provider, 47 U=
.S.C.S. 230(c)(1). See also <U>Zeran v. America Online, Inc</U>., 129 F.3d 3=
27, 331 (4th Cir. 1997), holding that claims against ISP's were barred by th=
e Communications Decency Privacy Act. Also, <U>Ben Ezra, Weinstein, and Comp=
any, Inc. v. America Online, Incorporated</U>, 206 F.3d 980 (10th Cir 2000),=
were the court found that America Online had not acted as an information pr=
ovider outside the scope of s. 230 immunity when it provided access to alleg=
edly inaccurate information regarding Ben Ezra, Weinstein, and Company's pub=
licly traded stock. </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLO=
R: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">2. But, such immunity is not=
without cost, including the cost of legal fees. Moreover, such immunity doe=
s not immunize websites that link to allegedly defamatory sites; nor is immu=
nity provided for such claims based on invasions of intellectual property or=
privacy rights. </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR:=20=
#ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">3. It is interesting to note=
that most cybersmearing cases are filed in state court, because it is often=
times impossible to plead either the federal jurisdictional principle of di=
versity of citizenship against a defendant whose identity and residence are=20=
unknown or federal question jurisdiction where a basis for invoking any fede=
ral law is generally lacking. </FONT><FONT COLOR=3D"#000000" style=3D"BACKG=
ROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0=
"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">4. For listings, see Cyber S=
ecurities Law Case Digest, at <<A HREF=3D"http://www.cybersecuritieslaw.c=
om/">http://www.cybersecuritieslaw.com</A>> (search term: 'cyber lawsuits=
').</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=
=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">5. 18 U.S.C. S. 2510 et seq.=
(The statute is a 1986 revision to federal wiretap laws necessitated by eme=
rging advances in communication including the Internet.) </FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">6.supra n1. </FONT><FONT CO=
LOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSS=
ERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">7. rev'd on other grounds su=
b. nom. <U>America Online, Inc. v.=C2=A0 Anonymous Publicly Traded Company</=
U>, 542 S.E. 2d 377 (Va.2001).</FONT><FONT COLOR=3D"#000000" style=3D"BACKG=
ROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0=
"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><B>Bibliography</FONT><FONT=20=
COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SA=
NSSERIF" FACE=3D"Arial" LANG=3D"0"></B><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">(June 2001) 'CEO's E-Attack=20=
on Collection agency Brings SEC Cybersmear Suit, Sanctions', E-Business Law=20=
Bulletin 16. </FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #fff=
fff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">(May 17, 2000) 'Creditrust C=
orp. Files Cybersmear Suit Against Insurer', Securities Litigation and Regul=
ation 5.</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff"=20=
SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">(June 26, 2000) 'Suit Said t=
o Be First to Smoke Out Competitor For Alleged Cybersmear', Delaware Corpora=
te Litigation Reporter 8.</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND=
-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0"><BR=
>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">Bell, B A (1999) 'Dealing wi=
th the 'Cybersmear'', New York Journal, April 19, 1999. </FONT><FONT COLOR=
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</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
<BR>
</FONT><FONT COLOR=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D2=
FAMILY=3D"SANSSERIF" FACE=3D"Arial" LANG=3D"0">=C2=A0</FONT><FONT COLOR=
=3D"#000000" style=3D"BACKGROUND-COLOR: #ffffff" SIZE=3D3 FAMILY=3D"SANSSERI=
F" FACE=3D"Arial" LANG=3D"0"><BR>
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