Lawsuit Cracks Open Online Anonymity
Shortcomings in the Law Allow Cyberdefamation Campaigns, Legal Expert Says
By KI MAE HEUSSNER
Feb. 27, 2009—
Steven Jones is an opinionated guy.
And when he reads something online that strikes a particular nerve, chances are he'll speak up.
So, when the 54-year-old from Texarkana, Texas, came across an article about a couple in neighboring Clarksville who were charged with sexual assault, he decided to throw in his own two cents.
Using the screen name "Wounded," Jones posted one of thousands of anonymous comments about the case. Others went further, linking the couple to perverted sex acts, drugs and other crimes.
Big mistake.
Earlier this month, Jones, a disabled truck driver, logged on to learn that the Clarksville couple, cleared of the charges, had turned around to file a lawsuit of their own -- against 178 anonymous commenters, including Jones, who they claim posted defamatory comments on the Web forum Topix.com.
Now that a Texas judge has ordered Topix to release identifying information for the posters by March 6, Jones, who revealed himself to ABCNews.com, is preparing to meet the couple in person -- in court.
Small Town Gossip Mill Explodes Online
Early last year, Mark and Rhonda Lesher, along with a man who works on their ranch, were accused of sexual assault by a woman in their small northeast Texas community.
But before they had even been indicted on the charges, a steady stream of attacks on the Web forum Topix.com started to flow.
The Leshers and their accuser live in the rural Texas town of Clarksville, population 3,500. Because talk of the trial -- online, at the local Dairy Queen and behind closed doors -- had set off such a stir, it was moved to a county a few hours away.
In January, a jury found the couple and their ranch hand not guilty on all charges.
But since reports of the rape allegations had begun to surface last year, the "conversation," rife with snarling anonymous commentary, exploded online.
More than 25,000 comments, on about 70 threads related to the trial, now live on Topix message boards for anyone with a search engine to see.
Rhonda runs a successful day spa. Mark's a prominent attorney. But if you Google "Mark and Rhonda Lesher," brace yourself for a storm of smut.
"Child molesters." "Rapists." "Drug dealers." "Herpes infested." And that's just the tip of the iceberg.
The couple feels vindicated by the jury's verdict. But "not guilty" means nothing to the Internet, where dirty laundry lasts forever, especially if it isn't true.
'Nine Months of Torture'
"The one thing we have is our reputation and credibility," Mark Lesher told ABCNews.com. "From the time I was indicted in April, my business fell off to just almost zero. It really just went to zero. I mean who's going to hire someone accused of rape?
"But it's not just the indictment itself," Lesher said.
The comments, which have no basis in fact, Lesher said, accuse the couple of murder, encouraging pedophilia, drug abuse and other "horrendous" crimes that materially attack their characters.
"The people who have hid behind the anonymity of the Internet need to be held accountable and brought to justice," Lesher said.
The 62-year-old lawyer said that he and his wife, 49, have been active members of the Clarksville community for years, recently lobbying to make the town's Main Street a historic landmark.
But "these nine months of torture" have taken their toll.
"My wife said she's lost her joy," Lesher said. "She held her head up high, but it's hard. When things get repeated over and over and over again, people say it's got to be true."
Targeting the 178 Posters
In their 365-page lawsuit, the Leshers name the 178 pseudonyms that posted the most defamatory messages. But because of the way Topix is set up, they believe it's entirely possible that far fewer than 178 people were actually responsible for the posts.
Anyone can post on Topix without giving up any personal information. That makes it very easy for commenters to impersonate one another or for one to adopt several names.
Commenter's named "lou," "Hellcat," "ilbedipt" and "Awareness" appear to be among the most prolific and vicious. But the same person could potentially be behind all the pseudonyms, or several people could be behind each.
The Leshers and others familiar with their initial trial say several of the Topix posters seemed privy to information that could only have been known by the accuser, her husband and law enforcement in Red River County. Before the Leshers were even arrested and before they were formally charged, the Leshers said people on Topix.com seemed to already know what was happening.
And, they continue, they don't think that's by coincidence.
State of Texas vs. Lesher, McCarver
In early 2008, Shannon Coyel, 38, accused the Leshers and McCarver of sexual assault after the Leshers had tried to help her divorce her husband, Jerry Coyel, 62, and gain custody of her 14-year-old daughter and 12-year-old son from a previous marriage.
Mark Lesher said he tried to help Shannon Coyel retain legal counsel to pursue her divorce and file a complaint against a local judge whom she said was close to Jerry Coyel and had awarded him temporary sole custody of her daughter, despite at least one report of child abuse.
According to the 2007 complaint filed with the State Commission on Judicial Conduct, Shannon Coyel claimed that her husband "is very wealthy, but he is also very possessive, demanding and a sexual pervert." In the same document, she also said that Jerry had abused her daughter.
In 2007 court proceedings to determine who should gain custody of the children, Jerry Coyel denied mistreating his stepdaughter.
When ABCNews.com contacted the State Commission on Judicial Conduct to determine the status of the complaint, a spokeswoman for the agency could say only that it had taken no public action against the judge. She also said that as of Dec. 31, 2008, the judge had become a senior judge and was no longer active in district court.
But when Shannon and Jerry Coyel decided to reconcile later that year, she retracted her abuse charges against Jerry and turned against the Leshers.
In her testimony in January, she said that the Leshers had given her pills that "just made [her] crazy." She admitted to calling Child Protective Services in Oklahoma and Texas to report the abuse charges against her husband but said she did it because the Leshers had drugged her.
Who Dunnit?
Through her husband, Jerry Coyel, Shannon Coyel declined to speak to ABCNews.com.
But Jerry Coyel spoke to ABCNews.com on several occasions. When asked if he knew who was behind the posts on Topix, he said he had "no idea." Coyel said he was "computer illiterate," had only been able to obtain access to the site with the help of his daughter and never commented on anything on the site.
Later, however, Coyel backtracked. He acknowledged that he might have posted on Topix but emphasized that he used his name and did not post anything derogatory about the Leshers.
"I believe I'd gone on there one time. I'm not positive about it," he said. "It's a freedom of speech blog."
But although Coyel said he himself had not posted negative comments on Topix, he acknowledged recognizing at least one of the posters.
According to the Leshers' lawsuit, a poster who identified himself as "Budweiser" made several disparaging comments about the couple on Topix.
On one occasion, he wrote: "I personally talked to D.J. An 11 year old boy and he tole me about the dope you gave his mother and the perverted stuff you wanted him to say."
On another, he posted: "When the gloves come off you will be the first to know ... Me and Pick got a present for you that will lite up your perverted life …"
Although Coyel said he had not seen Budweiser in years, and denied knowing his real name, he said that the two were acquaintances and he'd known him for years.
"He's a junkyard dog. He's a super nice guy, but he'll do anything if somebody pisses him off. He'll do anything. He's crazy," Coyel said.
He said that if the Leshers' lawsuit confirmed that the poster was indeed Budweiser, he wasn't worried. The one who should be worried, Coyel said, is Mark Lesher.
"He's fixing to be in a world he has no knowledge about," he said.
Piercing the 'Veil of Anonymity'
For those who frequent the threads of online forums and comfortably post comments behind the shield of anonymity, the Leshers' suit might sound surprising, or even alarming. But their lawyer, William Demond, told ABCNews.com that their actions are not unprecedented.
"This is not unusual as far as to pierce the veil of anonymity," the Austin-based attorney said. "There are certainly cases out there [although] nothing on this scale. Nothing quite this large."
Last year, lawyers for two female Yale Law School students unmasked anonymous posters who libeled the women on the college and graduate school admissions Web forum AutoAdmit.com.
But in a 2005 case, a Delaware court ruled against unveiling a blogger who had been slapped with a defamation lawsuit by a local councilman.
There's no standardized procedure, Demond said, but if a court finds that anonymous comments meet the definition of defamation, it can instruct a Web site to turn over any relevant information it has about the posters.
Following the Trail of Digital Breadcrumbs
Topix initially indicated that it would likely cooperate with the Tarrant County judge who ordered the Web site to disclose identifying information. But on Thursday the company filed a motion to quash the subpoena with the Superior Court of Santa Clara County, California.
"We are not averse to a reasonable solution," Chris Tolles, CEO of Topix, told ABCNews.com. But he said the request was "over broad and burdensome."
Tolles said the company takes privacy rights seriously and was a bit troubled by the large number of names included in the lawsuit and the implications it could have for its business.
"We have a business to run and that does give people the right to speak anonymously," he said.
However, if the Leshers' lawyer submitted a request that targeted fewer posters, he said Topix might be willing to comply.
At a hearing on March 27, a judge will rule on the company's motion.
But even assuming Topix turns over its information, identifying online commenters is not a simple task. Unless the commenters registered with Topix, which most did not do, Tolles said all the company would be able to reveal about each person is his or her IP (Internet protocol) address, or the unique number assigned to each computer.
Once the couple has the IP addresses, it would still have to go to the Internet service providers (ISPs) to identify the actual users. Assuming Topix releases the IP addresses in March, it could still be months before the ISPs turn over the information they have.
And, even then, the Leshers could find that the long trail of digital breadcrumbs leads them to library and coffee shop computers used by scores of people, instead of those in homes and offices used by an identifiable few.
'I've Got a Right to an Opinion'
But the Leshers, and other local residents familiar with the Topix threads, are convinced that if they get the chance to face their online opponents in court, they'll likely meet the people who pulled them into the courtroom in the first place, and their allies.
Most of the posters appear to be in no hurry to unmask themselves. But Jones, the truckdriver who posted under the name Wounded, said he's ready for the March 6 court date.
He said he used to be on Topix "every day, all day long." The comment that has made him a target in the Lesher's lawsuit is one of thousands of comments he has posted on a variety of subjects in the past couple of years.
Compared to many of the other commenters on threads about the Leshers, Jones, again, seems to be one of the milder and less prolific.
But he confirmed that under the alias Wounded, he wrote: "Either way you aren't going to sway my opinion about the DRUGS and the LESHER's."
Jones, however, doesn't regret his comments and said he has a "right to [his] opinion."
Even though he's a target in the Lesher's lawsuit, he said he's actually prepared to stand with the couple against Topix.
The site removed him earlier this year when he started commenting about how the site itself isn't properly moderated and has allowed people to post that they are going to kill him or rape his wife and child, despite Web site guidelines that say such comments are not allowed. He also said his address and directions to his home have been posted to the site.
"They are very angry at me because of [my comments about] incompetent moderators," Jones told ABCNews.com.
And he said he wouldn't be in this position if Topix had been doing its job.
"I just as soon see it fail. If they can't moderate it, they should pull the plug on it," he said.
The Law as an Accomplice
Legal experts, however, emphasized that the law protects Web sites like Topix. Even if the comments are considered defamatory by a court of law, Topix has no legal obligation to take the content down.
Defenders of the legal landscape argue that a change could stifle open discussion and free speech. But others maintain that in stories like this, regardless of who emerges, once the veil of anonymity is lifted, it is the law itself that is a co-conspirator.
"The law as it currently stands is an accomplice because it creates no incentive whatsoever for Web sites to review or police themselves from content that is potentially devastating to real people and real lives," Michael Fertik, a lawyer who specializes in online defamation, told ABCNews.com.
Part of the problem, Fertik continued, is that laws that made sense at the birth of the Internet age have not matured. It takes years to redress online defamation problems under the present regime. But, in the meantime, libelous comments easily found through search engines can sideline both personal and professional lives.
Although privacy and free speech advocates worry that changes to the law could "chill" online speech, Fertik argued that "the law can easily catch up without destroying speech."
But until then?
"The law provides the red dye for the scarlet letter," Fertik said. "It provides the ink for the tattoo that people create on Web sites like this."