Online libel case stirs up free speech debate

An Illinois politician's attempt to unmask the identity of an e-mail poster who allegedly made disparaging remarks about her teenage son in an online forum is stirring a debate about free speech rights on the Internet.

The case involves Lisa Stone, Trustee of the Village of Buffalo Grove, Il. According to a story in the Chicago Tribune , someone anonymously posted "deeply disturbing" comments about Stone's 15-year old son earlier this year in a local newspaper.

The paper had run a story describing a bitterly contested local election that Stone was running in. In response to that story an individual using the name Hipcheck15 posted comments that were critical of Stone. The comments apparently prompted Stone's son to go online and post comments in defense of his mother.

Those comments, in turn, evoked allegedly defamatory statements directed against Stone's son by Hipcheck15, the Tribune story said. The paper did not say what exactly Hipcheck15 wrote, but it quoted Stone as describing the comments as being "vile" and "shocking."

Stone did not immediately respond to an e-mailed request from Computerworld seeking comment for this story.

As part of an effort to file a defamation lawsuit against Hipcheck15, Stone approached the Cook County Circuit Court and asked it to order the newspaper to turn in the true identity of the poster, the Tribune said.

In response to an order from the court, the paper turned in the IP address for Hipcheck15. Stone then obtained a similar order from the circuit court judge that asked Hipcheck15's Internet service provider, or ISP, to reveal the true identity of the person to whom the IP address was assigned to.

According to the Tribune, the ISP late turned in the identity of Hipcheck15 to the court last month. A hearing is now scheduled for November 7 to decide whether the judge should provide Stone with Hipcheck15's true identity.

Stone apparently has insisted that all she is trying to do is protect her son and other children from being similarly attacked online. She is hoping the case will serve as a deterrent against similar attacks.

Eugene Volokh, professor of law at the University of California at Los Angeles' School of Law, said the case serves as another reminder that online anonymity does not automatically provide immunity against libel charges.

Individuals who libel or defame others online, anonymously or otherwise, are just as exposed to lawsuits as they are in the physical world and cannot expect First Amendment rights to automatically protect them.

"Saying you're a lousy professor is one thing. But saying you molest 13-year olds is completely different," he said. Though one might use a pseudonym to conceal their true identity a court can force an ISP to unmask them in such cases, Volokh said.

Judges in other cases have shown a willingness to do just that if, in their opinion, the complaints had merit.

In a similar case earlier this year, a Texas circuit court judge ordered an online news aggregation site to turn over identifying information on 178 people who had anonymously posted allegedly defamatory comments about two individuals involved in a sexual assault case. The two individuals, who were acquitted of all charges, had claimed they had been subjected to intense and inarguably defamatory comments in the online forum.

William Pieratt Demond, a partner at Connor & Demond PLLC, a law firm in Austin that is representing the couple, today said that the online site has since turned over information that has so far led to three people being identified as tied to the comments. Libel lawsuits have been filed against all three, Demond told Computerworld today.

In the Stone case, it is hard to know how much merit her complaint has, Volokh said. Judges have to make the decision whether an online comment reflects just a personal opinion which is protected, or if it crosses the line and becomes defamatory.

"Courts have said that because revealing a speaker's identity could end up deterring people from speaking up, we are going to require some showing whether there is a cause," he said.

Ed Yohnka, spokesman for the American Civil Liberties Union of Illinois, said the case was troubling. "We think anonymous speech on the Internet is really critical and needs to be protected," Yohnka said. It has traditionally been one way in which people have chosen to express themselves on political and social issues, he said.

Yohnka warned against a growing tendency by corporations and individuals to use defamation claims as a way to get the courts to force ISPs to unmask anonymous online commentators. "Saying something is defamatory shouldn't be the trigger" for deciding when someone should be unmasked he said.

Corporations and public figures in particular need to show they have a prima facie case before they are allowed to seek the identity of an anonymous poster, Yohnka said.

Copyright © 2009 IDG Communications, Inc.

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