US Ruling makes libel in cyberspace punishable

New York Times
December 18, 2000

New York – On December 7, Judge Richard Williams fo the federal district court in Richmond, Virginia, rejected a series of motions and gave his seal of approval to a jury’s verdict thatawarded $675,000 in compensatory and punitive damamges to Dr. Sam Graham Jr., an urologist in pivate practice in Virginia and former head of the department of urologyat Emory University School of Medicine.

According to evidence presented at the trial, Dr. Graham was the subject of statements published on a Yahoo message board accusing him of accepting illegal kickbacks while at Emory and of leaving the school under a cloud. The statements were written by an individual who went by the handle “fbiinformant” and who was later discovered to be Dr. Jonathan Oppenheimer, a pathologist based in Nashville, Tennessee.

Following a two-day trial, a jury ofund on October 25^th that my publsishing the statements, Dr. Oppenheimer and a company that he operates were guilty of defamation and intentional infliction of emotional distress.

In reaching it’s verdict, the jury necessarily concluded that statements penned by Dr. Oppenheimer were false and harmful to Dr. Graham’s reputation and that Dr. Oppenheimer acted negligentlyand even recklessly in publishing them.

Lawyers say the case may well represent the first time in the United States that a jury imposed a substantial libel award against a defendant who published an anonymous internet message.

The case also serves as an important reminder, experts said, that the rules of libel apply online as much as they do in the world of newspapers and magazines.

“What this case demonstrates is that people can be held responsible for what they post on the Net even though they posted anonymously,” said Lyrissa Barnett Lidsky, a prefessor at the University of Florida’s Levin College of law and an expert on defamation in cyberspace. “People need to understand that if they make an allegation of fact about someone online that is damaging to a person’s reputation, they better make sure that statement is true; otherwisethey can be held liable for libel”, she added.

Dr. Oppenheimer, who is not a lawyer but represented himself at trial, plans to appeal the judgement. He acknowledged that the factual statements he made were false, but he said that he believed they were true when he wrote them. “It’s going to ruin me” if the award is not overturned, he said.

According to legal papers filed in the case, Dr. Graham resigned from his post at Emory in July 1998 to move to Richmond and enter private practice. Several months after his exit, on Feb. 7, 1999, theoffending message appeared on a Yahoo message board devoted to information about Urocor Inc., which operates a pathology lab in Oklahoma City.

Dr. Graham was “absolutely shocked” when a friend referred him to the Yahoo posting, he recalled in a recent interview. “This whole thing where you can impugn somebody’s honour and think you can get away with it because you’re doing it anonymously is a bunch of baloney,” he said. Evidently he filed suit.

Dr. Graham’s lawyers first tried to unmask the anonymous author by serving legal papers on Yahoo and Internet service providers, but those efforts were unavailing, said D. Alan Rudlin, one of the attorneys. After seven months of investigation, the legal team connected Dr. Oppenhweimer’s name to the pseudonym through deposition transcripts stemming from a previous, unrelated lawsuit, Mr. Rudlin said. In one of those transcripts, Dr. Oppenheimer, who once worked at Urocor, testified that he had once posted under the name “fbiinformant”. Dr. Oppenheimer was fired from Urocor in 1997, Mr. Rudlin said.

Before the trial, Dr. Oppenheimer conceded that he wrote the Feb. 7 message, that it pertained to Dr. Graham and that Dr. Graham was not forced to resign from Emory. During the trial, Dr. Graham;s atorneys presented evidence that the statements written by Dr. Oppenheimer regarding the illegal kickbacks were false and defamatory. They also sought to demonstrate that Dr. Oppenheimer acted unreasonably when he posted the information after hearing it from a third party, without making sufficient efforts to check it’s veracity.

Last week, while denying the defendants’ motions for a dismissal of the charges or a new trial, Judge Williams said in court that themessages were “despicable” ACCORDING TO Mr. Rudlin.

The jury “very much did not like he defendant and very much liked Doctor Graham,” said William Riggenbach, a lawyer who represented Dr. Oppenheimer’s company, Prost-Data Inc., at the trial. He added that the gist of the defense, which the jury rejected, was that Dr. Oppenheimer’s reliance on the flase information relayed to him by the third party was neither negligent nor reckless, in light of Dr. Oppenheimer’s belief that the information was true.

Kurt Wimmer, a media lawyer at Covington & Burling, a law firm based in Washington, said tha the Graham case was “rather unremarkable” aside from the fact that it was the first Net libel case of it’s kind. “There are a lot of areas in law where the offline and online worlds are treated similarly,” he said. “Libel is one of those. If you libel someone anonymously and your ID is discovered, the law of libel is going to apply. It’s that way on the Net and that way off the Net.”

There’s one big difference between defamatory speech in the online and offline worlds, however, said Professor Lidsky of the University of Florida. On the Internet, the ordinary person is a publisher and thus the possibility that a small fry can become a defamation defendant is magnified.

After all, if the Internet didn’t exist, the defendant in the Graham case may have simply talked around a water cooler and no suit would have been brought, Mr. Lidsky explained. The conversation would have been “beneath notice,” she said. But on the Internet, people who engage in “water cooler gossip” must appreciate that there is a possibility that they could be subject o a lawsuit if they defame someone, she said.