Journal of Information, Law and Technology Cybersmearing: a legal Conflict Between Individuals and Corporations

Current and Evolving Trends in Cybersmearing Cases

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4. Current and Evolving Trends in Cybersmearing Cases

The conflicts posed by Internet anonymity obviously require that a balance be struck between its benefits and its potential abuses. From a purely Constitutional perspective, it is evident that the balance should be heavily weighted toward the preservation of free and unimpeded online expression. As the US Supreme Court has noted:
‘the right to remain anonymous may be abused when it shields fraudulent conduct. But...our society accords greater weight to the value of free speech than to the dangers of its misuse’ (McIntyre v. Ohio Elections Commission, 514 US334 (1995)).
To date, most defendants grappling with the defense to a disclosure subpoena have asserted arguments sufficient only to resist the plaintiff and have ignored an equally fundamental alternative, namely whether or not abusive use of the discovery process by the plaintiff constitutes, in and of itself, the basis for a responsive cause of action sounding in tort. In many instances, the real purpose underlying many cybersmear suits is merely to unearth identifying information so that a corporate plaintiff can confirm its suspicions and initiate some form of non-judicial action, such as the termination of an employee suspected as the offending anonymous poster. And, once the discovery into the identity of the anonymous poster is completed, the lawsuit is quietly dropped. A number of authors and free speech advocates refer to these types of actions as ‘cyber-SLAPP’ suits, the online equivalent of ‘strategic lawsuits against public participation’(Gallagher, 2000). These authors maintain that such suits are not intended to vindicate valid legal claims, but instead, to invoke punitive sanctions against offenders over whom the corporate plaintiff can exert some degree of authority or control. Such punitive intent might support a tortuous claim for abuse of process against the corporate plaintiff if persuasive arguments can be crafted to credibly emphasize the vindictive intent motivating the plaintiff's discovery lawsuit. After all, if the only remedy that the plaintiff seeks to achieve is some form of non-judicial relief, such as employee termination, then how can the corporate plaintiff maintain a cause of action for disclosure alleging damage from defamatory statements that it fully intends to ultimately ignore?
Further, if employee termination is the ultimate objective of the corporate plaintiff in a cybersmear lawsuit, the manner and means of that termination may well lead to tortuous claims for wrongful termination especially if the cybersmear basis for such termination is not a clearly defined cause for termination as indicated in promulgated employment policies, procedures, handbooks, and materials. Further, selective enforcement of termination policies and procedures might additionally evidence a discriminatory intent applied through arbitrary, capricious, or subjective conduct.
Legislatively, statutory protection for the online privacy of individuals who use the Internet has been introduced in the US Senate in the form of a proposed bill entitled as the Online Personal Privacy Act (2002 S. 2001; 107 S. 2201, April 18, 2002). The bill is currently being debated in the Senate Committee on Commerce, Science, and Transportation. The bill's ultimate passage is uncertain, particularly as its language does not clearly establish standards or criteria for distinguishing civil claims having merit from those lacking merit in pursuit of remedies against anonymous posters.

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