by Greg Beck
Video Professor, a company that uses infomercials to sell computer-training lessons, sued 100 anonymous "John Doe" posters who expressed their opinions about the company on various online forums, including infomercialratings.com. The company's lawsuit claims that the griping posters violated federal trademark laws by saying negative things about the company, and committed defamation and several violations of state law. After filing suit, the company sent subpoenas to the operator of the websites, demanding the release of the posters' identifying information and the IP addresses from which they made the posts. Here's the complaint and the company's motion to subpoena the anonymous posters' identity. The challenged posts are here and here.
The Internet has become the preeminent forum for consumers to share information about products and services online. Courts have recognized that the First Amendment protects the right to post criticism anonymously, noting the risk that critical opinions would be chilled if the identity of anonymous critics could too easily be revealed. Indeed, Video Professor's own website advises consumers to search for customer reviews online:
[I]f you decide to use a lesser-known merchant, there are a few things you can do to check out the seller and make sure he’s legit. For one, you can visit the Federal Trade Commission’s Web site for links to consumer protection resources, including lists of complaints lodged against businesses. You also have the option of searching the business section of a major search engine, where you can view company profiles and customer reviews of that company’s products and services. Last but not least, you can request that a seller send you a catalog or other information about his or her company.
My colleague Paul Levy sent a letter to Video Professor today objecting to the subpoena.