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Free Speech Week on the 'Net: First Internet Libel Case Victory, and Triumph for "Wal-Mart Sucks" Site
by Wendy R. Leibowitz

In early December, a doctor won the first Internet libel victory based on an anonymous posting. Dr. Sam D. Graham, Jr., was awarded $675,000 in damages, when an anonymous message was posted on a Yahoo! message board, accusing Dr. Graham--then chair of the Emory University School of Medicine's urology department-- of accepting kickbacks from a urology company. The author of the message, who signed himself "fbiinformant," was revealed to be Dr. Jonathan R. Oppenheimer, a staff pathologist at the urology company.

In the early nineties, Internet libel cases brought against anonymous posters focussed on the liability of the online service provider, such as Prodigy Services or America Online. But Congress passed legislation protecting these companies as passive information transmitters, much the same way the telephone company is protected from crimes plotted over telephone lines. But now, those ISPs have the technologies to track the anonymous posters, though many insist on receiving court orders and giving notice to the authors that their identities are being sought. The attorneys for Dr. Graham, D. Alan Rudlin and J. Burke McCormick, sued only the author of the message, and not Yahoo!, in early 1999. Dr. Graham, who resigned from Emory in 1998, now practices in Richmond, Va.

In another case implicating free speech, the owner of the site at www.wallmartcanadasucks.com was allowed to keep his domain name. An arbitrator, Henry Perritt Jr., dean of law at Chicago-Kent College of Law, operating under the aegis of the Internet Corporation for Assigned Names and Numbers, or ICANN, refused to order Kenneth Harvey, a resident of Newfoundland, Canada, to turn over the domain name to the Bentonville, Ark.-based retail giant, Wal-Mart Stores, Inc.

Dr. Perritt's decision surprised many observers, who were concerned that the rights of trademark owners, particularly the owners of "famous" marks such as Wal-Mart, were given too much deference by ICANN's arbitrators. But Dr. Perritt carefully justified his decision--the first ICANN arbitrator to allow a "sucks" site. First, the arbitration process protects against trademark infringement, and is not "a general remedy for all misconduct involving domain names." Second, Mr. Harvey had acted within ICANN's rules. The name he registered, wallmartcanadasucks.com, with Wal-Mart spelled with two l's and no hyphen, is not "identical or confusingly similar to" Wal-Mart's trademark.

Finally, Mr. Harvey did not use the name in bad faith--to post pornography, for example, or to confuse consumers into thinking they were at the Wal-Mart official site. The owner of this "sucks" site has the right to use it "as a foundation for criticism of the complainant."

The complainant, Wal-Mart, may appeal.


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