Metropolitan News-Enterprise


Thursday, February 7, 2008


Page 3


Court Quashes Subpoena Seeking Identities of Posters to Online Message Board


By STEVEN M. ELLIS, Staff Writer


Individuals who post to Internet message boards have a First Amendment right to anonymity which can only be overcome in a defamation case if the plaintiff shows that the posts give rise to a viable cause of action, the Sixth District Court of Appeal ruled yesterday.

Reversing the decision of Santa Clara Superior Court Judge Socrates P. Manoukian, the court held that Lisa Krinsky did not allege a viable cause of action and quashed a subpoena that she served on an internet service provider in California seeking the identity of an anonymous participant on a message board that the provider hosted who had made “vulgar and insulting” comments about Krinsky because no reasonable reader would have believed the comments were based on actual facts.

Krinsky, the former president, board chair and chief operating officer of SFBC International, Inc., a publicly traded “global development drug service company” with offices in Florida, filed suit for libel and interference with contractual/business relationships in a Florida state court in 2006 against 10 pseudonymous posters on a financial message board hosted by Yahoo!, Inc. after a conversation regarding SFBC devolved into scathing verbal attacks on Krinsky and other officers of the company.

She alleged that the defendants had made “defamatory remarks” about her on the message boards and other websites using screen names to conceal their identities, and attempted to discover the defendants’ identities by serving a subpoena on Yahoo.

One of the defendants, “Doe 6,” who had posted comments under the screen name of “Senor Pinche Wey,” moved to quash the subpoena, arguing that Krinsky had failed to state a claim that was sufficient to overcome his First Amendments rights.

While most of Doe 6’s comments derided another executive, Jerry ‘Lew’ Seifer, as a “mega scum bag” and a “cockroach,” he had jointly referred to Krinsky, another executive and Seifer as “boobs, losers and crooks;” accused Krinsky of possessing a “fake” medical degree; and accused her of having “poor feminine hygiene.”

Finding that Doe 6’s conduct appeared to be similar to federal cases involving so-called “pump and dump” stock manipulation efforts, and concluding that the totality of circumstances justified the relief Krinsky was seeking, Manoukian denied the motion.

On appeal, Justice Franklin D. Elia wrote for the court that posters to Internet message boards had a First Amendment right to shield their identity, and that this right could only be overcome if Krinsky could make a prima facie showing that a case for defamation existed.

Examining Krinsky’s libel claim under Florida law—which Elia noted was similar to California law in that it required a private plaintiff to prove that the defendant published a false statement to a third party that caused injury to the plaintiff—and her contractual interference claim—which he rejected as merely “recasting” the defamation claim—Elia wrote that Krinsky had failed to make such a showing.

“Doe 6’s messages, viewed in context, cannot be interpreted as asserting or implying objective facts…. A reasonable reader…would not comprehend the harsh language and belligerent tone as anything more than an irrational, vituperative expression of contempt….

“Rather, they fall into the category of crude, satirical hyperbole which, while reflecting the immaturity of the speaker, constitute protected opinion under the First Amendment.”

Elia said that the court’s conclusion “should not be interpreted to condone Doe 6’s rude and childish posts,” but reflected the fact that offensiveness, by itself, was not a sufficient reason to justify suppression of speech.

Presiding Justice Conrad L. Rushing and Justice Eugene M. Premo joined Elia in his opinion.

The case is Krinsky v. Doe, 08 S.O.S. 906.


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