Internet users win protection in libel suits

From the Winter 2002 issue of The News Media & The Law, page 45.

People who operate Web sites or post messages on Internet bulletin boards have won protection from libel suits in New Jersey, New York and California. In New Jersey, a judge deflected an effort to reveal the identities of people who posted anonymous online messages. A libel case was dismissed in New York against a Web site that reports on Latin American drug activity. And a California appeals court protected online criticism of a public company.

Judge stifles effort to unmask anonymous Web site users

Anonymous critics who posted Internet messages about public officials in Emerson, N.J., have fought successfully — at least for now — a subpoena that would reveal their identities.

“The First Amendment guarantees the right not only to speak freely but to speak anonymously and these protections apply to speech on the Internet,” Bergen County, N.J., Superior Court Judge Mark M. Russello wrote in his Dec. 21 decision that quashed the subpoena against the anonymous posters, including those who did not have attorneys.

Russello also dismissed Stephen Moldow, the operator of the Web site, from the defamation lawsuit filed by four public officials — Emerson Council members Vincent Donato and Gina Calogero; Republican Municipal Chairman Lawrence Campagna; and Eric Obernauer, a candidate for public office.

Moldow operates a Web site called “Eye on Emerson,” which provides information about the town’s government and school district. The Web site includes a message board where users can express opinions.

The lawsuit, filed July 23, accuses Moldow and 60 John and Jane Does of posting false statements on the Web site. The plaintiffs sent a subpoena to Vantage Net in St. Paul, Minn., which hosts the Web site, to unmask the anonymous posters.

Russello found the subpoena procedurally defective. The plaintiffs had not given proper notice of the subpoena to the anonymous posters, which could have been accomplished by posting a notice on the Eye on Emerson message board, the judge ruled. Also, the plaintiffs failed to show that the 117 postings at issue in the case were actually defamatory, meaning that they were false statements of fact instead of opinion.

Russello did not dismiss the anonymous posters from the case. That means the public officials can correct the defects and refile their lawsuit and subpoena request. Their attorney, Jack C. Darakjy, said he plans to do so.

Darakjy also plans to appeal the dismissal of Moldow from the case. Russello ruled that the federal Communications Decency Act protected Moldow from the defamation suit. That law shields Web site operators from liability for putting information supplied by someone else on the Internet. Holding Moldow liable for defamatory comments made by anonymous posters would discourage the creation of Web sites, the judge ruled.

Richard L. Ravin, the attorney for some of the anonymous posters, said the ruling was a victory for Internet users.

“This whole area is taking on a tremendous amount of significance and becoming important in all our lives,” Ravin said. “It’s so much easier to talk about somebody online and to criticize them and to even to use hurtful language than ever in our history, and I think courts are going to be called upon more and more to be gatekeepers of the First Amendment right to speak not only freely, but anonymously.” (Donato v. Moldow)

Web site given same protection in New York as mainstream media

A Web site that reported drug activity in Mexico is entitled to the same heightened First Amendment protection against a libel suit as newspapers, magazines and other mainstream media, a New York trial judge in Manhattan ruled in December.

New York Supreme Court Judge Paula Omansky dismissed the Bank of Mexico’s libel suit against The Narco News Bulletin (www.narconews.com) because the bank could not meet the higher standard required for suing a media defendant for libel.

“The Internet is similar to a television and radio broadcast in the sense that the electronic missive is able to reach a large and diverse audience almost instantaneously,” Omansky wrote.

The format of narconews.com “is similar to a regularly published public news magazine or a newspaper except for the fact that the periodical is published ‘on line’ or electronically, instead of being printed on paper,” Omansky wrote. “The fact that the Narco News website can accept readers’ comments, or letters to the editor, via a separate e-mail address only strengthens the need for First Amendment protections for the medium.”

In New York, the Supreme Court is the trial-level court. The Bank of Mexico could appeal the ruling to higher courts.

The Bank of Mexico sued the Web site; its publisher Al Giordano; and Mexican journalist Mario Renato Menendez-Rodriguez for libel for comments made about the bank’s director, Roberto Hernandez-Ramirez. The bank claimed that by accusing the bank director of criminal drug trafficking, the defendants hurt the bank’s reputation in the United States.

Plaintiffs in libel suits who are public figures must prove actual malice — that a person published a defamatory statement knowing it was false or with reckless disregard for the truth. The judge found that the bank was not a public figure, but the bank still had to prove “constitutional malice” because the statements made by the media defendants involved matters of public concern.

The bank could not meet that standard, the judge ruled. The bank did not argue that Giordano and the Web site used sources that they knew or should have known were unreliable, or that the defendants were aware of circumstances that would have led them to question the veracity of the information on the Web site.

Menendez-Rodriguez was dismissed from the suit because his activities in New York were insufficient to give the court jurisdiction over him. The judge did not resolve whether the court had jurisdiction over Giordano and his Mexico-based Web site. Instead, the judge found that the bank could not prove its libel claim. (Banco Nacional de Mexico v. Rodriguez)

California statute shields Internet users from libel suit

The California Court of Appeals in Riverside on Nov. 15 dismissed a libel claim against critics of a publicly traded company who posted their opinions on a Web site.

A California statute that protects people from libel suits when they are exercising their free-speech rights shielded the people who posted messages on the “Raging Bull” and “Ogravity99” Web sites, the three-judge panel ruled.

ComputerXpress, Inc., a public company that sells computer-related products, sued the Internet users for libel for making allegedly false statements about the company to potential investors.

The defendants argued that ComputerXpress filed a SLAPP lawsuit aimed at silencing valid criticism. SLAPP stands for “strategic lawsuit against public participation.” California’s anti-SLAPP statute allows a court to dismiss a claim that interferes with a person’s right to discuss public issues, unless a plaintiff can prove that he would probably win on his claim.

The statute protected the online criticism of ComputerXpress because the comments were made in a public forum, they concerned issues of public interest, and ComputerXpress was not likely to prove that the statements were defamatory, the court ruled. The defendants were speaking as investors about a publicly traded company, so their comments were made in connection with an issue of public interest, the judges said.

Finally, the online comments were opinions — “hyperbolic” and “informal” — and were protected, the decision said.

While the court dismissed the libel claim, the lawsuit will proceed on other claims of fraud, negligent misrepresentation and negligence stemming from merger talks between ComputerXpress and a business owned by the defendants. (ComputerXpress v. Jackson) — MD