Verdict appealed in anonymous cyberlibel case

Monday, December 18, 2000

A cyberlibel case in Virginia recently led to one of the first, if not the first, jury verdict based solely on anonymous online postings.

In October, a federal jury awarded $675,000 to Samuel D. Graham Jr., a urologist living in Richmond, who alleged he was defamed by online statements made by Nashville-based pathologist Richard Oppenheimer.

The jury awarded Graham $325,000 in compensatory damages and $350,000 in punitive damages.

On Dec. 7, U.S. District Judge Richard Williams rejected Oppenheimer's motion to set aside the jury's damage award.

Graham, the former chairman of the urology department at Emory University in Atlanta, sued Oppenheimer and his Nashville-based company Prost-Data for libel and intentional infliction of emotional distress after learning that an unnamed Yahoo! user posted a message accusing him of accepting kickbacks.

The Yahoo! user, identified only as “fbiinformant,” posted the following message in February 1999:

“Sam Graham, MD used to be the Department Chair of Urology at Emory Clinic in Atlanta. UroCor (a urology company) decided to underbid the Emory Pathology Department for pathology services and give Graham a cut of the money it got from doing the pathology. This worked well until the poor SOB got caught with his hand in the cookie jar. Poor guy had to resign his prestigious position.”

Graham sued for defamation, claiming that the only true statement was that he had been chairman of Emory's urology department.

Graham's attorneys learned the identity of “fbiinformant” only after subpoenaing documents in litigation between UroCor and Oppenheimer.

“It took us six to seven months of legwork to learn the identity of 'fbiinformant,' ” says Graham's lead attorney D. Alan Rudlin.

Oppenheimer had worked as a pathologist for UroCor for eight months until October 1997. After leaving UroCor, Oppenheimer opened his own urologic pathology lab in Nashville, Tenn. Oppenheimer made many negative statements about UroCor online.

“We believe this is the first jury verdict in an Internet defamation case based on anonymous postings filed by an individual,” Rudlin said. “This could very possibly lead to other similar lawsuits. I have already received numerous inquiries from people who say they have been harmed by anonymous statements on the Internet.”

Oppenheimer has already filed a notice of appeal to the 4th U.S. Circuit Court of Appeals. Earle Duncan Getchell Jr., Oppenheimer's attorney on appeal, says there are several grounds for the appeal.

“We contend that the plaintiff should not be able to recover punitive damages because he failed to show evidence of actual malice, or reckless disregard for the truth, as required by the U.S. Supreme Court in New York Times Co. v. Sullivan,” Getchell said. “We also contend that the compensatory damages award was excessive.”

Getchell also notes that the jury found Oppenheimer liable for both libel and intentional infliction of emotional distress. However, the jury made a unitary damage award without specifying amounts for libel and emotional distress.

Kansas-based libel attorney Blaine Kimrey, who has handled numerous Internet-related defamation cases, says that “Internet issues spring up frequently in libel litigation.”

Kimrey said that many Internet defamation cases occur because newspapers have online editions or television stations have Web sites.

He expects that this case will not be an isolated event, but will lead to a greater number of libel suits.

“Because of the sense of anonymity on the Internet, people feel that when they speak anonymously online, they are more free to disparage other people,” Kimrey said. “Oftentimes, this sense of anonymity is ill-founded because oftentimes you can take an Internet protocol address and decipher it into the identity of a specific individual.”

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