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***¶*** Aliases Subject of Internet Libel Case...

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BY CARL S. KAPLAN

Last week Judge Richard L. Williams of the federal district court in Richmond, Va., rejected a series of motions and gave his seal of approval to a jury's verdict that awarded $675,000 in compensatory and punitive damages to Dr. Sam D. Graham Jr., a urologist in private practice in Virginia and former head of the department of urology at Emory University School of Medicine.

According to evidence presented at the trial, Dr. Graham was the subject of statements published on a Yahoo message board accusing him of accepting illegal kickbacks while at Emory and of leaving the school under a cloud. The statements were written by an individual who went by the handle "fbiinformant" and who was later discovered to be Dr. Jonathan R. Oppenheimer, a pathologist based in Nashville.

Following a two-day trial, a jury found on October 25 that by publishing the statements, Oppenheimer and a company that he operates were guilty of defamation and intentional infliction of emotional distress. In reaching its verdict, the jury necessarily concluded that statements penned by Oppenheimer were false and harmful to Graham's reputation and that Oppenheimer acted negligently and even recklessly in publishing them.

Oppenheimer, a non-lawyer who represented himself at trial, said in an interview that he plans to appeal the judgment. He acknowledged that the factual statements he made are false, but he said that he believed they were true when he wrote them. "It's going to ruin me" if the award is not overturned, he said.

Lawyers say the case may well represent the first time in the United States that a jury imposed a substantial libel award against a defendant who published an anonymous Internet message.

The case also serves as an important reminder, experts said, that the rules of libel apply online much as they do in the world of newspapers and magazines.

"What this case demonstrates is that people can be held accountable for what they post on the Net even though they posted anonymously," said Lyrissa Barnett Lidsky, a professor at the University of Florida's Levin College of Law and an expert on defamation in cyberspace.

"People need to understand that if they make an allegation of fact about someone online that is damaging to that person's reputation, they better make sure that statement is true; otherwise they can be held liable for libel," she added.

According to legal papers filed in the case, Dr. Graham resigned from his post at Emory in July 1998 to move to Richmond and enter private practice. Several months after his exit, on Feb. 7, 1999, the following message appeared on a Yahoo message board devoted to information about Urocor Inc., which operates a pathology lab in Oklahoma City:

"Sam Graham, MD used to be the Department Chair of Urology at Emory Clinic in Atlanta. UroCor 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." The message was signed by "fbiinformant."

Graham was "absolutely shocked" when a friend referred him to the Yahoo posting, he recalled in a recent interview. "This whole thing where you can impugn somebody's honor and think you can get away with it because you're doing it anonymously is a bunch of baloney," he said. Eventually he filed suit.

Graham's lawyers first tried to unmask the anonymous author by serving legal papers on Yahoo and Internet service providers, but those efforts were unavailing, said D. Alan Rudlin, one of Graham's attorneys. After seven months of investigation, the legal team connected Oppenheimer's name to the pseudonym through deposition transcripts stemming from a previous, unrelated lawsuit, Rudlin said. In one of those transcripts, Oppenheimer, who once worked at Urocor, testified that he had posted under the name "fbiinformant." Oppenheimer was fired from Urocor in 1997, Rudlin said.

Before the trial, Oppenheimer conceded that he wrote the February 7 message, that it pertained to Dr. Graham and that Dr. Graham was not forced to resign from Emory. During trial, Graham's attorneys presented evidence that the statements written by Oppenheimer regarding the illegal kickbacks were false and defamatory. They also sought to demonstrate that Oppenheimber acted unreasonably when he posted the information after hearing it from a third party, without making sufficient efforts to check its veracity.

Last week, while denying the defendants' motions for a dismissal of the charges or a new trial, Judge Williams said in court that the messages were "despicable," according to Rudlin.

The jury "very much did not like the defendant and very much liked Doctor Graham," said William V. Riggenbach, a lawyer who represented Oppenheimer's company, Prost-Data Inc., at the trial. He added that the gist of the defense, which the jury rejected, was that Oppenheimer's reliance on the false information relayed to him by the third party was neither negligent nor reckless, in light of Oppenheimer's belief that the information was true.

Kurt A. Wimmer, a media lawyer at Covington & Burling, a law firm based in Washington, D.C., said that the Graham case was "rather unremarkable" aside from the fact that it's the first Net libel case of its kind. "There are a lot of areas in law where the offline and online worlds are treated similarly," he said. "Libel is one of those. If you libel someone anonymously and your ID is discovered, the law of libel is going to apply. It's that way on the Net and that way off the Net."

Nor is anonymous speech, uttered on a wild and woolly online message board, subject to lesser standards of care than anonymous speech published in a newspaper, added Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression and a law professor at the University of Virginia. "I don't think in this respect that the medium makes the slightest difference," he said.

There's one big difference between defamatory speech in the online and offline worlds, however, said Professor Lidsky of the University of Florida. On the Internet, the ordinary person is a publisher, and thus the possibility that a small fry can become a defamation defendant is magnified.

After all, if the Internet didn't exist, the defendant in the Graham case may have simply talked around a water cooler and no suit would have been brought, Lidsky explained. The conversation would have been "beneath notice," she said. But on the Internet, people who engage in "water cooler gossip" must appreciate that there is a possibility that they could be subject to a lawsuit if they defame someone, she said.