 |
Message
Board Misconduct and the Law
By
Jay Hollander
Jay Hollander, Esq. is the principal of Hollander and Company LLC, www.hollanderco.com, a New York City law firm concentrating its efforts in the protection and development of property interests relating to real property, intellectual property and commercial interests, as well as related litigation.
The content of this article is intended to provide general information relating to its subject matter. Providing it does not establish any attorney-client relationship and does not constitute legal advice. Personal advice in the context of a mutually agreed attorney-client relationship should be sought about your specific circumstances. Summary: What
can you do when someone posts a nasty message about you
or your company on an Internet message board? What if the
message defames you or contains your copyrighted material?
How can you identify the perpetrator if the message was
posted anonymously? This article discusses these questions
and more.
Introduction
Next to e-mail, message boards and chat rooms are two of the
most widely used forms of communication available on the Internet.
With
the explosion of these Internet communication tools has
come an avalanche of what many consider to be libelous
and slanderous statements, as well as statements that wrongfully
disseminate confidential, false or misleading business-
and securities-related information.These statements are
not only damaging to reputation, but they may cause real
financial damage as well. When these statements are leveled
against companies, especially public companies, the results
can be particularly harmful.Further, given the way the
Internet operates, these messages can come from anywhere
and be posted by people using aliases that make it very
difficult to identify them. Worse, once picked up by search
engines, these statements can hang around seemingly forever.How,
then, do companies affected by such statements deal with
that? How do they track down the creators of these messages
and stop them? Increasingly, the answer seems to be in
the commencement of litigation against these posters.
Legal
Theories: Defamation and More
Depending on the exact
nature of the statements involved the legal theories
underlying these cases vary.One of the more common legal
theories in these cases is defamation, that is, a published
intentional false communication that injures a company's
reputation or good name. If the posters are employees
of the company and if they have signed confidentiality
agreements, another popular theory arises out of a claimed
breach of fiduciary duty owed to the company by the employee.
Typically, in these cases, the allegations concern breach
of an employment agreement containing confidentiality
clauses, preventing employees from wrongfully disseminating
private information about the company in public. Similarly,
if the offender is not necessarily an employee but instead,
perhaps, a competitor, other available theories include
interference with business relations.In a more limited
number of cases, where the wrongful posts involve attempts
to manipulate securities prices, securities fraud-related
federal and state laws may become involved.
Tracing Anonymous Posters
Whatever
the legal theory, it's obvious that the company
commencing the lawsuit will not get very far if it can't
identify the message poster or the origin of the offending
message, an all-too-common difficulty.The most important
thing to recognize is that individuals or groups posting
such messages rarely do so in their own names.
Rather, they use aliases and try to hide their true whereabouts.
Finding them requires a combination of technological
detective work and swift court action.Message boards
are usually hosted through the aid of commercial
Internet service providers ("ISPs")
such as America Online and Yahoo. Subscribers to these
message boards have self-styled e-mail addresses, either
issued by the host of the message board or some other ISP.Users
of these services log on to their computers and are assigned
an Internet Protocol or "IP" address, which is really how
computers identify themselves to other computers on the
Internet. Most people don't have a fixed IP address that
follows them wherever they go but, instead, are randomly
or "dynamically" given a new address every time they log
on to their ISP.So, behind the scenes of all Internet communications,
what's really going on is that computers identified on
the Internet by a certain IP address are used to send messages
using an e-mail or message board name to message boards
located at a different IP address.Unfortunately, since
these user IP addresses are assigned dynamically, and lasting
only the length of the session, most ISPs don't keep records
of them for long. What's more, since these IP addresses
are randomly assigned, a malicious poster who logs onto
the Internet several times will have done so through several
different IP addresses, even through the same ISP.This
is where the lawyers step in. Their challenge is to follow
the trail backwards from the message board, traveling to
the IP address from which the message was sent, to the
ISP whose server was used to send it, to the actual sender.How
do they do it? The simple answer is litigation.As the first
salvo, even before the formal complaint is filed, the company
lawyer must send a cease and desist letter to the message
board ISP to "stop the bleeding" by removing the
offensive post from its server so it no longer
remains there for new viewers to see. The lawyer
must also request that the ISP retain whatever
evidence it has on the posting's origin, taking
it out of its ordinary record disposal procedure
and avoiding destruction of evidence.Even if the
lawyer is successful in garnering the ISP's cooperation
here, the litigation process is just beginning.
Confronted with this type of dispute, lawyers will
often try to have the ISPs give them the IP address
and originating computer server of the post, something
most ISPs will not do voluntarily. As a result,
a company's lawyers must swiftly commence a case
and seek expeditious discovery of the ISP to attempt
to compel the information so as to identify the
actual offending party before the evidence is lost
and the trail goes cold.At this point, the lawyers
must think fast and hard because they will be forced
to commence a lawsuit without the benefit of a
lot of the standard information normally required
by the law.
Who to Sue, and Where?
Obviously,
before filing any lawsuit, lawyers need to know who
they are suing. Thanks to a federal statute known as the
Communications Decency Act ("CDA"), they generally won't be able to sue
the message board ISP because the CDA immunizes these service
providers from lawsuits based upon offensive materials
originating from a third-party poster unless the message
board ISP itself was involved in the creation of the information.If
the lawyer can't sue the message board ISP and doesn't
know the real identity of the poster, odds are they'll
do what so many lawyers faced with this problem have done:
sue one or more "John Does," essentially a placeholder
defendant meant to represent the person being sued, until
such time as the true name is discovered.Then there is
the question of where to bring suit? All lawsuits require
a plaintiff to establish that the court has jurisdiction
-- or controlling power and authority -- over both the
dispute and the defendant. The problem is that, if the
lawyer doesn't know the identity and location of the defendant,
it's unclear where to sue them. Here, too, though, there
are potential ways around the problem.For example, virtually
every state has a concept known as "long-arm jurisdiction." In
simple terms, this means that a state court can exercise
its jurisdiction, even over an out-of-state defendant,
if that defendant has caused harm within the complaining
party's state and that harm is the specific basis of
the lawsuit. Additionally, if the lawsuit raises a
federal question, that is, a question arising out of
the U.S. Constitution or a federal statute, then federal
court will be available, the only question being what
state it should be brought in.
Identifying the Anonymous Poster
As
much as anything else, the paramount concern in matters
such as this is speed. Particularly, if the message board
ISP has refused to either turn over any information or
even to isolate it, a lawyer's only immediately meaningful
way to identify the mystery poster is to obtain a speedy
subpoena from a court, authorizing him or her to obtain
information from the message board ISP. The lawyer may
also seek to obtain a temporary restraining order enjoining
the ISP from deleting or otherwise disposing of its information
during the initial discovery process.The name of the
game here revolves around getting as much information about
the mystery poster from the message board ISP as possible
before it destroys the information in the normal course
of business.Specifically, what the lawyer looks for is
information about the ISP through which each of the offending
posts was sent, the IP address assigned to the poster
during the pertinent session, the poster's e-mail address
and, if available, even the poster's true identity.You
might wonder if ISPs served with such subpoenas might resist
them. In fact, many have. Some will be more compliant
than others. But, in reality, if there is going to be real
opposition to the subpoena, it will likely come directly
from the mystery poster, who will likely be advised in
advance that the information has been requested.How can
posters prevent disclosure of the information? The typical
method is to make what's known as a motion to quash the
subpoena, that is, a request to have the subpoena invalidated
in whole or in part.The most common bases for these motions
revolve around freedom of speech, privacy interests and
even relevance and materiality of the requested information
to the allegations contained in the original complaint.
Although results differ from state to state and from
case to case, the apparent prevailing interpretation is
to allow the subpoenas to stay in effect so long as the
party bringing the lawsuit can establish that the information
sought relates to messages or posts for which a credible
claim of wrongful conduct can be shown.If successful in flushing out the true identity
of the offending poster, experience suggests that the worst
is over. Once the posters cannot hide behind their aliases,
they know that they will remain potentially liable for
the consequences of their statements and that the complaining
party now "knows where they live," as they saying goes.But,
how do you bring the dispute to its conclusion? Well,
that depends on how strong the claim for damages is
in the first place and how likely it is that the now-identified
poster has the resources to pay any damages recovered.
Many times, an agreed-upon injunction or a public retraction
resolves the matter, especially if the identified wrongdoers
not have the money to pay damages.
Preventative Maintenance
As
you can see, firing up the legal guns in emergency mode
is not easy in this context and, despite what's been
written here, many cases fail because the lawyers aren't
able to get the needed information in time.So, as lawyers
often advise their clients, being alert to the possibility
of these postings in advance can be a huge advantage to
a company looking to prevent or minimize damage flowing
from mystery posters.To the extent of their resources,
companies should seek out message boards likely to elicit
posts involving their industry, or even their company,
and monitor them as regularly as possible to take appropriate
action at the first sign of trouble. If any of these types
of posts are caught quickly, a company may even be in a
position to respond on the same message board, or issue
a press release to defray the damage.
In
the end, the key to dealing with the problem of mystery
posters lies in consistency, preparedness and swift action
in the face of threatening online conduct. Copyright © Jay Hollander, 2007. All Rights Reserved.
![]()
![]()
|
