[Press Release Issued by Plaintiff John Doe v. Yahoo! Inc.]
Cleveland, OH, May 11, 2000--A private Internet user is filing a federal law suit today in Los Angeles against Yahoo!, a large Internet portal headquartered in Santa Clara, California, charging violation of his constitutional and contractual rights to privacy. In what is believed to be the first suit against Yahoo! for disclosing personal information, "Aquacool_2000" as John Doe is fighting to reclaim his cyber-rights. The case is expected to have wide repercussions and implications in the uncharted cyberworld.The suit charges that Yahoo!, in response to a subpoena, stripped away the user's pseudonym without notice and disclosed his personal identity as a participant on a Yahoo! chat board. Yahoo! maintains these boards for every publicly traded company and anyone can post messages. Most individuals contribute by pseudonym.
Yahoo! had responded to a subpoena filed by AnswerThink Consulting Group, Inc. ("AnswerThink"), a publicly held company providing Internet web consulting services. Increasingly, large corporations are suing John Does for posting comments on chat boards critical of company performance and management. These suits are often frivolous and aimed at stifling speech protected under the First Amendment.
This case marks the first time an individual has filed suit against Yahoo! for disclosing his identity, says David Sobel, general counsel of the Electronic Privacy Information Center (EPIC), a nonprofit group based in Washington, D.C. He expects this case will highlight the significant privacy issues involving free and anonymous speech on the Internet and help to establish protections for future Internet communications.
Privacy advocates have long criticized Yahoo! for being the most loose-lipped of the online companies. "Yahoo! has pursued a policy of disclosure without accountability, making no effort to protect chat-board users," says Sobel. "If people are not assured of anonymity online, it will have a chilling effect on their speech."
Megan Gray of Baker & Hostetler, a member of Aquacool_2000's legal team, points out that the suit was filed in California, home of Yahoo! and a state with its own constitutional privacy protections. "Yahoo! will comply to any subpoena without considering the substantive or technical legitimacy. Its failure to provide notice denies a Yahoo! user opportunity to object and to obtain legal counsel," she adds. Because any lawyer can issue subpoenas without a judge's approval or a court hearing, Yahoo! users are more vulnerable to corporate bullying tactics that harass and intimidate critics.
"Before someone's anonymity is revealed, that person should have an opportunity to show that the underlying lawsuit is frivolous or does not meet the necessary legal criteria," explains Gray. She points out that other Internet portals, including AOL and Microsoft, contact their subscribers and provide time for response before complying with subpoenas.
Chris Hansen, a lawyer with the American Civil Liberties Union who specializes in Internet speech, said that his organization favors at least two protections for anonymous chatters. "Any complaint filed in court against an unknown Internet defendant should include specifics of the allegedly objectionable postings," he said.
"Also, a judge should not allow a lawyer to issue subpoenas in these cases without requiring that the Internet service provider notify the potential defendant that someone is seeking information about him and giving him an opportunity to enter court to protect his anonymity."
"The right to anonymous speech should not be breached so easily," Hansen said.
The Supreme Court has long recognized the First Amendment right to communicate anonymously. In one of the more recent decisions, McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court concluded that anonymity "is not a pernicious fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority."* The Court pointed out that the U.S. has a long tradition of protecting the right to communicate anonymously, beginning with the Federalist Papers in the late 1700s.
Background
AnswerThink filed a complaint in the Southern District of Florida on February 23, 2000, against John Doe (alias "Aquacool_2000") and 11 other John Doe individuals for defamation and breach of contract, with an injunction to restrain speech. AnswerThink then immediately issued a subpoena to Yahoo! to disclose posters' identifying information. This subpoena was in violation of court rules and without notice to any defendant in the case.
During a 5-month period, Aquacool_2000 posted 30 of the more than 2600 messages on the AnswerThink chat board. Of these, half of his comments were critical of the company and its operations with respect to the volatility of the stock price. The complaint by AnswerThink did not indicate which, if any, of Aquacool_2000's specific statements were considered defamatory. The Aquacool_2000 "examples" listed in the complaint are typical of the majority of messages on that board: hyperbole and opinion.
Yahoo! disclosed Aquacool_2000's personal information without any notice or warning to him. This action contradicts the numerous assurances made by Yahoo! on its website that it is "committed to guarding [users'] privacy online."
On March 30, 2000, AnswerThink narrowed the suit to one individual, based on Yahoo! information that stripped away Aqualcool_2000's pseudonym. Aquacool_2000 has petitioned the court to permit protection of his privacy under his pseudonym.
AnswerThink, an Internet web consulting company, was founded in 1997 and went public in May 1998. Through 1999, the company's growth has been fueled mainly by numerous acquisitions.
Aquacool_2000 was until very recently an employee of AnswerThink. He is also a shareholder and has been vocal over many months, both openly and anonymously, stating his opinions about the performance of the company's stock and its management. He did not trade AnswerThink stock during the period covered by his postings on the Yahoo! chat board.
In February, 2000, when AnswerThink filed its Florida action against Aquacool_2000 and the other John Does, the company owed him a significant cash payment and a large block of stock to be vested a few weeks later.
On March 30, right before the cash payment was due, and based on Yahoo!'s disclosure of his identity, AnswerThink dismissed Aquacool_2000 and denied him both his payment and shares.
Aquacool_2000, who desires to remain anonymous, has filed a countersuit against AnswerThink for violation of civil rights, abuse of process, invasion of privacy, and breach of contract.
* "Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is 'responsible,' what is valuable, and what is truth." Justice Oliver Wendell Holmes, as quoted by the U. S. Supreme Court in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
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For more information, please contact the following:
Berenice Kleiman
KLEIMAN ASSOCIATES INC.
Cleveland, OH
(216) 491-8114 (day or evening)
Megan E. Gray
Baker & Hostetler LLP
Los Angeles, CA
(213) 975-1763