POSTED ON MAY 1, 2013:
Anonymous No Longer
Subpoena highlights privacy limits
Free speech may not trump a determined legal quest seeking to unmask online commenters.
Beautiful Brands International issued a subpoena to the Tulsa World on March 11 seeking the identity of an online commenter, according to a letter from the World to the commenter.
The Tulsa-based franchise development company came under scrutiny in a Feb. 17 Tulsa World story with the online headline, "Camille's empire copes with setbacks," referring to one of the company's restaurant brands. The article included comments from unhappy franchisees, as well as statements from others more satisfied with their experience.
Robert Sartin, the attorney representing Beautiful Brands, said in an interview that the company sought the identity of online commenter "Unhappy Franchisee" because comments written under that name were false and defamatory.
Most comments were relatively tame; "Please fact check EVERYTHING this company tells you," one portion of a comment stated. But "Unhappy Franchisee" also challenged information on the Beautiful Brands website and criticized "publications" for earlier stories the commenter described as "fiction." One comment -- since deleted -- made an unkind comparison related to the company's investment philosophy.
"It was clear from the posts that ... the person who was posting this information was attempting to harm Beautiful Brands International. It was clear that that was their intent, and so we believe that we had a legal right to determine who it was," Sartin said.
The move was another salvo in a long-running dispute between the company and the UnhappyFranchisee.com blog, which includes criticism of several franchise companies.
The blog has often been critical of Beautiful Brands -- as well as perceived softball news coverage of the company. The blog was apparently an impetus for the World article being published, based on blog posts.
In response to the subpoena, the World first notified the commenter, then issued a letter to Sartin objecting to the release of the commenter's identity. The letter, dated March 21, stated that the World objected "based upon the First Amendment right of anonymous commenters to post information without identifying themselves."
The letter also cited the World's privacy agreement: "Personal information provided to Tulsaworld.com is not sold, traded or otherwise purposefully delivered to a third party without the permission of the person providing that information." (Urban Tulsa Weekly's policy is similar: "We will not share any user's personal information with any other organizations without the user's consent, nor will we publish such information.")
But despite the firmness of the letter, the World, now operating as WPC.Ok, Inc., had earlier spelled out to the commenter the limits to which they would defend anonymity.
"After entering the initial objection, WPC does not intend to defend against producing the identifying information if the Plaintiff moves to compel WPC to produce," the letter to the commenter stated.
The issue became moot, however, when the commenter, Sean Kelly, voluntarily agreed to reveal his identity with Beautiful Brands International. Kelly has said he is not a Beautiful Brands franchisee. His attorney, Jonathan Fortman, shared the correspondence from the World.
"We made the decision, basically called their bluff," Fortman said, adding that Kelly is prepared to "start on the path of proving everything he said is accurate."
On April 8, after receiving word from Kelly that he was waiving his anonymity, the World released his name to Sartin. Google, which had also been subpoenaed, also released information to Sartin.
On April 19, Beautiful Brands filed for dismissal of its legal action. Sartin said no decision has been made about a lawsuit against Kelly.
Brady Henderson, legal director of the ACLU of Oklahoma -- an advocacy group that defends free speech -- said it's very rare in Oklahoma for a company to seek to unmask an online commenter, even when comments are especially negative.
It's "extremely hard for a business to win that type of case," Henderson said, because most often the comments can be described as opinion or a personal observation. While law enforcement regularly issues subpoenas related to electronic speech, he couldn't recall a similar civil action in Oklahoma.
Henderson praised the World for notifying the commenter about the subpoena, adding that such notification is not required by law. Because the World only allows subscribers to comment online, "there's a greater set of dealings" that may lead a judge to favor disclosure, though the law isn't completely settled, Henderson said. For commenters, "I don't have that same anonymity. I can't just say, I'm a stranger to you," Henderson said. Despite a claim of defamation, Henderson said it would be rare for a judge to consider the actual content of the speech in ruling on any motion opposing a subpoena.
He said it's no surprise the World would avoid a lengthy legal battle defending anonymity, calling the World's reaction "exactly what I'd expect."
"You want to take certain steps to try to preserve the integrity of what you do, but at the end of the day, it's not in your interest to go far enough to risk contempt or being fined by the court," Henderson said.
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