Tuesday, October 3, 2000, The Industry Standard (www.thestandard.com)
TOP STORY
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The Battle Over John Doe 

By John Roemer 

Les French believes that there is an ongoing battle to silence
anonymous message board posters, and he's taking steps to lead the
counterattack.

Pitting the free-speech rights of online posters against companies who
need to protect themselves against libel, "cybersmear" lawsuits that
companies file against anonymous posters, is an increasingly common
occurrence.

French, a Portland, Ore., resident who works part-time as a limo
dispatcher, contends that many businesses file cybersmear lawsuits
against anonymous posters simply to harass and silence people who
speak out against them. If he has his way, he might create a "chilling
effect" of his own by dissuading companies from going after legitimate
complainers.

He established the John Does Anonymous Foundation (johndoes.org) using
a $40,000 settlement he won in April after being sued by his former
employer, retail barter exchange Itex. The company claimed he posted
damaging comments about its management on a message board; he won the
case after countersuing, saying he'd done nothing wrong.

The organization is his attempt to combat legal abuses and civil
liberties violations by companies who sue anonymous posters. He says
that he opposes the practice of making defamatory statements online
and simply believes in free speech, however unruly, uninformed or
wrongheaded the expression may be. But what really gets his goat are
companies' efforts to stifle legitimate, constitutionally protected
griping on online message boards about companies and their management.

Though there are legal remedies for victims of unwarranted lawsuits,
few laymen understand the intricacies of the law. Therefore, French
says that his organization is recruiting pro bono attorneys to aid
defendants who are being threatened by corporate plaintiffs. Five
attorneys reportedly have signed up already.

So far, members of the legal community appear to have varied opinions
of French's efforts.

"I don't think French is over-the-top," allows New York securities
litigator Blake Bell, who tracks "cybersmear" lawsuits at his
Cybersecuritieslaw.com site and often represents companies who file
such lawsuits. "He's a very effective proponent of the posters' point
of view."

Others have asserted that French's activism is motivated by money
rather than ethics. One of French's most recent adversaries is Michael
Zwebner, the feisty chairman of the British teleconferencing company
Talk Visual, who has sued anonymous posters, alleging that they hurt
his business. His latest John Doe suit is against someone who uses the
name of Zwebner's deceased ex-girlfriend in attacks against him and
his company.

According to Zwebner's attorney, Victor Polk of the Boston law firm
Bingham Dana, French has come forward as the person who posted those
online messages. "Mr. French wants to be the defendant," Polk
continues. "My client has been standing up to people who get personal
about him. It's hard to see what Mr. French's motive is, unless he
thinks he can win some more money."

Others argue, however, that in fighting inconsequential cybersmear
lawsuits, French is doing something legitimate and useful: He's trying
to fend off the chilling effect that plenty of companies would like to
create in online financial message boards.

"Certainly, a lot of companies bring these suits for inconsequential
reasons, simply to produce a chilling effect on message-board posters
who fear getting involved with courts," says Lyrissa Lidsky, a libel
law professor at the University of Florida College of Law, who has
written about "cybersmear" lawsuits. "Some are valid defamation
actions, but many are complaints about language that may be harsh,
hyperbolic and ill-informed, but that is still protected by the
Constitution."

And if French has his way, we may be seeing fewer cybersmear lawsuits
in the future.

Defending Right to Post Message: 'CEO Is a Dodo' 
http://interactive.wsj.com/articles/SB970106304455904019.htm 
(Paid subscription required.) 

Silencing John Doe: Defamation and Discourse in Cyberspace 
http://www.law.duke.edu/shell/cite.pl?49+Duke+L..+J.+855 

Corporations Face Reprisals From Cybersmear Defendants 
http://www.ljx.com/newsletters/private/corpcounsellor/2000/2000_01_01.html