There have been a number of recent developments involving lawsuits and legal motions filed intended to reveal the authors of comments published on the Internet anonymously. Most recently, with regards to reader comments in response to a story published by the Dallas Observer, reported on by the Original Prop Blog a few weeks ago (see “Heritage Auction Galleries Lawsuit In The News; Claims of “Fake Bidder” N.P. Gresham, Auction Manipulation“). Heritage has now reportedly subpoenaed the Dallas Observer to identify select users who posted anonymously in reaction to their news report.
As reported, a former employee of Heritage Auction Galleries, Gary Hendershott, has filed suit against the auction house with claims that he and his interests were damaged by Heritage’s use of a pseudonymous account to place bids in their own auctions. Hendershott’s attorney, Mark Senter, has published several press releases with regards to their claims, which has resulted in the story and legal battle playing out in the public and press.
Following the Dallas Observer story, which was also published on their website, DallasObserver.com, a number of comments were published online in reaction to the article. In addition to those made by Jim Halperin, Co-Chairman of Heritage Auction Galleries, were a number of anonymous comments – some in support of the auction house, others highly critical.
Today on the CoinTalk.com discussion forum, a member started a new topic stating that he received the following e-mail as a result of comments made by him on the Dallas Observer website (see “Heritage on a Witch Hunt – They Bully Dallas Observer to Name Names“):
THE DALLAS OBSERVER HAS BEEN SUBPOENAED TO DISCLOSE YOUR USER INFORMATION. PLEASE READ THIS EMAIL CAREFULLY.
A comment was posted to dallasobserver.com from this email address. As the Observer states in its Privacy Policy, we value your privacy and will not disclose any user information (such as email address) without your consent or unless under a court order.
The Observer has been served with a subpoena in connection with a court case that requests disclosure of “information to identify” you and other users who have posted comments to the Observer website. This information may include your email address and/or IP address.
The subpoena was issued in the case of Heritage Auctions, Inc. v. Gary L. Hendershott, et al., Cause no. DC-09-13332, in the 298th District Court of Dallas County, Texas. A copy of the subpoena is attached to this notice.
IF YOU WISH TO OPPOSE THE DISCLOSURE OF YOUR USER INFORMATION, YOU MUST FOLLOW THE PROCEDURE DESCRIBED BELOW.
The Observer will comply with the subpoena – which calls for the Observer to provide the requested information by December 15, 2009 – unless you take action in court to prevent the disclosure of your user information.
You have the right to appear in court (anonymously, if you wish) to oppose the disclosure of your user information by filing a “motion to quash” the subpoena. You may wish to consult with a lawyer of your choosing to discuss your legal rights, including your First Amendment right to speak anonymously. Contact information for the court is:
298th Judicial District Court
Hon. Emily G. Tobolowsky, Presiding
Carolyn Dupree Brown, Court Coordinator
298th District Court
George L. Allen, Sr. Courts Bldg.
600 Commerce St.,
Box 822
Dallas, Texas 75202
214-653-6781The subpoena can be seen here:
There are additional comments published today in response to the Dallas Observer article on their site in which additional participants in the ongoing dialogue have stated that they have also received such notice (see “Lawsuit Claims Heritage Auction Galleries Uses Fake Bidder to Manipulate Auctions“).
However, on CoinTalk.com, there is a post made by Stewart Huckaby (Post #12) this afternoon with some important clarifications:
Heritage is not on a witch hunt and we are not trying to bully anyone. In fact, Heritage believes it has been the victim of systematic defamation and civil extortion by Gary Hendershott, a former consultant who owes us over $1 million, and his attorneys. Below are links to Heritage’s Motion for Sanctions and our Defamation and Civil Extortion Lawsuit against Hendershott and his attorneys:
We have no quarrel with anyone who simply expressed an honest opinion, nor do we have any dispute with our neighbors and friends at the Dallas Observer, who have written many positive stories about Heritage over the years. In order to litigate our case, we are merely trying to discover which of the anonymous Dallas Observer postings were actually made by Hendershott and people working for him.
We have already dismissed “JR” and “Chris Welch” from the subpoena, as we are satisfied that neither of them is Gary Hendershott or working for Hendershott.
Drusus, we will gladly dismiss you as well if you’ll let us know what name you posted under on the Observer Blog. A PM here or via e-mail at [email protected] would be great.
For the record, the correct, legal definition of shill bidding is bidding for the purpose of raising the price on an item without the intention of buying that item. Heritage does not engage in shill bidding, period. In fact, we open all live bidding at the reserve (i.e. no chandelier bidding), unlike most other auctioneers, even Christie’s and Sotheby’s. And we actually disclose reserves several days prior to the auction. Since the identity of our bidders is never announced by us, any internal shorthand we might use could hardly be termed an “alias”, and the use of that shorthand is utterly meaningless to our clients, as much as Hendershott and his attorneys have attempted to make our legitimate business practices seem sinister. Feel free to read the two court-stamped documents linked above, and we hope you’ll understand why we felt we had to take these measures to protect our very valuable reputation.
Stewart Huckaby
1-800-872-6467 x1355
coins.ha.com
Recent Court Cases Involving Content Published Anonymously
Coincidentally, earlier this month, Michelle Fabio, Esq. published an interesting article on the LegalZoom.com site with contemporary case references on this very issue (see “Bloggers Busted By Courts“).
Fabio writes that the Supreme Court “had ruled that the right to anonymous free speech was squarely protected by the First Amendment, namely in the 1995 McIntyre v. Ohio Elections Commission decision“:
“Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views…Anonymity is a shield from the tyranny of the majority…It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society..”
She then goes on to report on two recent cases in the U.S. which run counter to these principles. The first (also reported on by Online Media Daily – see “Court Compromises On Request To Unmask Blogger“), involved a model, Liskula Cohen, who found defamatory comments made about her on the Internet in the form of anonymous postings on Blogger.com. Her attorneys filed a motion to compel Blogger.com owner Google to reveal information about the identity of the person publishing the content. Because the New York Supreme Court found that Cohen had “established the merits” of a defamation case, they ordered Google to reveal the identity of the person who published the derogatory comments. The court referenced a 2001 Virginia Circuit Court case:
“In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.”
The second case referenced by Fabio in her article relates to a California Superior Court case in which a former police officer, Calvin Change, sued the University of California. With this example, Chang subpoenaed Google to force them to provide IP and other information to reveal the identities of users who published anonymous comments on the Google-hosted “People’s Vanguard of Davis”, in that Chang believed the comments were made by university managers, which was in violation of a prior settlement agreement. The judge in the case approved Chang’s motion noting that the revelation of the identities behind the anonymous comments “appears reasonably calculated to lead to admissible evidence“. In this decision, the judge created a compromise so that the names of those who published the anonymous comments in question would only be revealed in the event that they were those suspected by Chang.
The Internet, The Law, and Anonymity: A New Trend?
Considering the trend seen in comparing these unrelated cases in different jurisdictions, it would seem that perhaps the courts are just beginning to catch up with the serious problems caused by the freedoms offered via the Internet to publish content anonymously with an expectation that no consequences will follow. I suspect that as these types of cases grow and attract mainstream media attention, there may be a shift in how some express themselves on the Internet, and perhaps greater caution and consideration will be employed. More, websites that allow the publication of anonymous content may change their policies to reflect such legal developments. Another article was published by CNN two days ago which discusses many of these issues and concerns (see “Can the law keep up with technology?“).
As noted consistently in past articles, I am personally a strong proponent of transparency in using the Internet as a tool for communications and publishing news and opinions, as well as transacting within this hobby (see “Anonymity, Transparency, & The “Real World”“). If someone wants to publish an opinion for public consumption, I personally see no compelling argument for any expectation of anonymity.
Jason DeBord