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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.

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