by Greg Beck
First it was Video Professor, now Quixtar (an affiliate of Amway) is suing anonymous Internet posters who made disparaging remarks about the company online. Hopefully, the judge will ensure that the anonymous posters have notice and an opportunity to respond before their identities are revealed.
Update: commenter ibofightback pointed out that Quixtar is supposedly going after a specific group of former employees who are under court order not to disparage the company. These former employees were apparently subject to a non-disparagement contract. According to the company's blog:
[W]e are seeking to support the legal system – and not attack First Amendment speech. Tough line to walk, but we’ll walk it. Because we believe in both principles.
It could very well be that some of these sites truly are spontaneous, just angry citizens independently voicing their opinions without direction from anyone else. We have no problem with those folks. We don’t want their money, we regret wasting their time and we will even offer to reimburse their costs.
The offer to reimburse costs of innocent defendants is certainly praiseworthy (assuming that it includes attorneys' fees), but reimbursing the formerly anonymous speakers cannot make up for their loss of anonymity. If Quixtar can sue to discover the identities of anonymous critics just to find out whether they may be violating a court order, it would create a serious chilling effect on further criticism. Moreover, the court order that is supposedly being violated appears to affect only four people. I would be interested in knowing why the company cannot pursue more limited discovery into whether those four people are violating the order without digging into the identities of other anonymous critics. I'd also be curious to know what measures will be taken to inform the anonymous critics of the subpoenas and give them an opportunity to object.
Those who receive subpoenas or notice from their ISP that they have been subpoenaed may want to consider contacting Public Citizen, the Electronic Frontier Foundation, or another lawyer who would consider defending the speaker's anonymity on a pro bono basis.
Update #2: The complaint (available here) does not mention the court order. Instead, it targets bloggers and YouTube posters who "disaparag[ed] Quixtar, its products and prices" or who encouraged Quixtar's members (Quixtar calls them "Independent Business Owners," or "IBOs") to leave the Quixtar program. The complaint speculates that these bloggers may have an interest in a competing multi-level marketing program. It alleges that the bloggers' disparagement tortiously interferes with the company's contracts with its existing IBOs and constitutes unfair competition.
However, some of the criticisms may be true or statements of opinion and thus may be protected First Amendment speech. The speech may be protected even if made by a competitor and, in any case, the company's blog appears to concede that some non-competitors may be swept up in the dragnet ("It could very well be that some of these sites truly are spontaneous").
[original story via Techdirt]