Thursday, May 03, 2012

Harassers Are Losing Their Anonymity...

By Yamil Berard

Imagine waking up one day and finding out that you have been labeled a thief, hooker, pimp, child abuser or tax evader on an anonymous blog.

As people ramp up their trash talk online, such harassment is becoming more common, said Kenton J. Hutcherson, a Dallas attorney who specializes in Internet defamation cases. "I see these cases every day," Hutcherson said. "I have a unique niche."

The Internet has become a Wild West of hooligans apt to besmirch the name of anybody they don't like, because they think they can get away with it under a cloak of anonymity, legal experts say.

"The real difficulties you are going to have is finding who are the John Does who are posting this stuff," said Frank Snyder, a law professor at Texas Wesleyan University in Fort Worth.

Indeed, for a while, the anonymous posters could hide. They counted on Internet service providers to refuse to unmask them.

But now, courts are ordering that they be exposed, opening the way for defamation lawsuits.

Just this week, a Tarrant County. Texas jury awarded a couple $13.8 million in a libel judgment, said to be one of the largest ever in an Internet defamation case. Hutcherson is now trying to unmask other anonymous posters who targeted three area residents, including two from Tarrant County.

He filed a lawsuit this month against "John or Jane Doe" on behalf of the three, who have been named on a Google-hosted blog as "two pimps and a prostitute." The accusations on the blog have caused "severe emotional distress," the lawsuit states.

Hutcherson says his clients are ordinary people. One, a Kaufman County woman, is a homemaker, a PTA member and a mom, he said. "She is scared to death that other people in the neighborhood will see this stuff and see that she's accused of being a prostitute," Hutcherson said.

None of the three have been charged with prostitution-related offenses, according to a check of criminal records. They did not respond to requests for comment.

Hutcherson said his clients aren't looking for a big verdict. They just want the allegations removed from the blog, known as "open secret" and affiliated with an online escort service. The blog identifies the plaintiffs as associated with Dallas brothels, a spa and another agency.

The information is easily accessible on Google, Hutcherson said.

[We are] not identifying the plaintiffs to avoid spreading the allegations.

In most of these cases, clients shun publicity, Hutcherson said. "The client in these cases is put at a difficult position because in order to vindicate their name, they have to go out there and file a public lawsuit," he said. The first goal in many Internet libel cases is to identify the anonymous poster.

To do that, the plaintiff's attorney issues a subpoena to the online service provider that hosts the pages with the defamatory content.

The provider -- Google, for example -- then typically notifies the anonymous defendant, who has 20 days to file a motion to quash the information. If no motion is filed or the court denies the motion, the provider must turn over the information, Hutcherson said. Once it is released, the defendant's real name replaces "John or Jane Doe" in the lawsuit.

Hutcherson's plaintiffs have a slam-dunk libel case if the allegations are false, Snyder said. Under age-old common law rules, it's unlawful to call a "chaste" woman a prostitute. It is called "libel per se" -- or libel that is obviously harmful.

"You're not only impugning a crime to them but implying unchastity as well," Snyder said. "If it's untrue, the common-law rule would be you get damages just by showing someone has falsely called you a prostitute."

The same rule, however, doesn't apply for men labeled pimps or prostitutes, he said. "Go back 150 years, a man who had affairs with other women was kind of admired."

Hutcherson's advice: Be careful what you post.

"People get behind the computer and they think they're anonymous and are not going to be held liable so they do things they normally would not do," he said. "They have this sense of empowerment. ... The way they act on the Internet is different than they way they act normally. The problem is that the Internet is the real world and it affects real people ... causes real damage."

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