Web Site Ordered to Unmask Anonymous Posters

Thursday, February 12, 2009 08:16 AM PST

The First Amendment protects the right to free speech and anonymous free speech. But it doesn't offer the right to libel someone, anonymously or otherwise.

A Texas circuit court judge served up a reminder of the amendment last week when she ordered an online news aggregation site to turn over any potentially identifying information it has on 178 people. They had anonymously posted allegedly defamatory comments on the site about two individuals involved in a sexual assault case.

Tarrant County District Court Judge Dana Womack served a subpoena to Topix.com. The company has until March 6 to comply with the order.

The order was issued in connection with a lawsuit that was filed by Mark and Rhonda Lesher (PDF document), a couple from Clarksville, Texas, who had been charged with, but recently acquitted of, sexually assaulting a woman.

Mark Lesher, a practicing attorney in Clarksville and Rhonda Lesher, who operates a beauty salon in the town, were accused last year of the crime against a former client of Mark Lesher.

The two were acquitted on all counts by a jury in Collin County in January after the case was moved in September 2008 to a new venue because of fears that the Leshers wouldn't get a fair trial in Red River County, where the case was originally heard.

Forums flare up

The complaint alleged that media reports about the case generated more than 25,000 comments -- many of them were anonymous and harshly critical of the couple -- on Topix.com's user forums. The allegedly offensive comments were present on more than 70 individual threats on Topix message boards of nearby Texas communities such as Clarksville, McKinney and Avery, the complaint noted.

The Leshers claimed that the comments were a form of persecution against them and that the anonymous posters had defamed them and tarnished their reputation, their standing in the community and their businesses.

The complaint added that before the case began, neither of the Leshers had any presence on Topix. It claimed that the Leshers were the "victims of a vicious cyberdefamation campaign" that was waged on Topix, and sought actual and other kinds of damages from the as yet unidentified posters of the messages.

William Pieratt Demond, a partner at Connor & Demond PLLC, a law firm in Austin that is representing the Leshers, said that the lawsuit was limited to the posters of only those statements that are arguably defamatory under Texas law.

The allegations in the anonymous postings in question "are so inflammatory and so horrendous under Texas law that no proof of damages is even required" to pursue the lawsuit, Demond said. "All we have to prove is that it was said and damages are presumed under the law."

Topix: We take privacy seriously

Topix CEO Chris Tolles said that his company had received the subpoena and was currently figuring out what exactly it needed to do. "We are not there yet, since it was a large request with lots of detail," Tolles said in an e-mail. "We prefer to make sure requests are clear and specific and not overly broad."

Tolles said that Topix takes privacy issues very seriously and that his firm would not "simply hand over all of our records" without a review of the demand by its lawyers and a discussion of the issue with the court.

At the same time, though, Tolles said libel was a legitimate concern, and that Topix will cooperate with the courts when a valid request for information was made. Topix is reviewing the subpoena to make sure the request is "above a reasonable threshold," he said.

Reminder: Anonymity is not immunity

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

While the First Amendment provides protections for free speech, "not all categories of speech are protected, libel for instance," Volokh said.

"While people have the right to say things anonymously, if someone sues them of libel, then a court may order others to turn over information about them," Volokh said. "The First Amendment does not prevent the use of judicial processes to uncover the identities of speakers" in cases where libel is suspected.

It is not the first time a court has ordered a Web site or service provider to hand over identifying information on anonymous posters.

The most high-profile example involves two female Yale Law School students who were the targets of a similar flood of highly personal anonymous attacks posted on the AutoAdmit college bulletin board in 2005.

In January 2008, the students got a Connecticut district court judge to issue a subpoena asking the operator of AutoAdmit to hand over any information it had to help reveal the true identities of 39 posters who used pseudonyms on the board.

The subpoena resulted in the lawyers for the two students unmasking the identities of several of the anonymous users behind the postings.

In a blog post related to the case, Volokh noted that while some of the comments against the two students may well have been libelous, some of the statements could also be interpreted as threats of rape and other physical harm against the two.

In similar cases, such comments, whether anonymous or not, "may be constitutionally unprotected, and there would be no bar to tort liability for them," Volokh noted in the blog post.