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Trolling for Libel

A local developer sues a Web designer for defamation: The growing debate over free speech and the Internet.

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In early December, Internet surfers in Richmond may have noticed an unusual Web site named after Margaret J. Freund, a local real estate executive who owns such notable properties as the Lady Byrd Hat Factory, a downtown music destination.

Margaretfreund.com featured an altered picture of Freund in a demonic pose with these words from the 1989 “Ghostbusters II” movie: “On a mountain of skulls, in the castle of pain, I sat on a throne of blood! What was will be! What is will be no more! Now is the season of evil.”

The quote comes from a fictional character in the movie, Vigo the Carpathian, and has been restated endlessly on blogs favored by heavy metal fans. Freund was not amused.

After launching an extensive probe, she sued a number of domain registry companies in a Dec. 28 lawsuit seeking compensation of $400,000 in damages. The lawsuit's primary target was Brian Mount, a Richmonder who works as a Web site developer for INM United, which is a tenant of and has done work for Freund. In the complaint she charged that the domain companies refused to identify who had bought the site's name and that Mount had created it to defame her. (Full disclosure: INM United designed VirginiaTalks.com, which is owned by Style Weekly.)

The case is one of an increasing number of lawsuits filed by alleged victims of Internet-based spoofs or other mischief. Most involve basic First Amendment issues about what is appropriate for quickly made comment on such social networking media as blogs, Facebook and Twitter. “These are big amplifiers for water-cooler conversations but sometimes people forget how public and permanent their comments are,” says Chris Gatewood, a lawyer specializing in Internet issues at Hirschler Fleischer in Richmond.

Indeed, old rules of what is appropriate in the print world don't seem to apply on the Web where often anonymous commentators can dash off a few pithy, if not insulting, lines in a few seconds. Some anonymous commentators are dubbed trolls in Web lingo. Like their mythical namesakes, such introverts hide under their electronic bridges, strike and then run away.

Offended parties struggle to find out who made the comments or how to take them off the Web. Courts are trying to sort out what is opinion and fact and what constitutes slander and defamation in the new Web era. Gatewood notes that defamation is “a false statement that creates a damaging, negative image of a person or group.”

What separates defamation and opinion is not always clear. In Texas, for instance, students of a high- school assistant principal posted a phony MySpace account of her, listing her supposed sexual orientation. The principal sued the students and their parents and got MySpace to delete the listing.

In a more straightforward case, a high school honor student in Florida was suspended when she called one of her instructors incompetent on an online blog and used her own name. Worried that her suspension would affect college applications, she successfully sued the school to have her record expunged. A judge ruled that she was entitled to say what she did because it was opinion.

Digital skullduggery can involve big names and brands. John Mackey, founder of New Age grocery chain Whole Foods, was revealed for posing for eight years as an ordinary investor who made anonymous comments on a Yahoo message board promoting his company and himself while putting down competitors.

Other attacks are more elaborate, taking the form of entire Web sites that mock an individual or corporation. Just how far a satire can go is problematic. In one famous case, the U.S. Supreme Court ruled that Hustler magazine did not defame Jerry Falwell, the late Lynchburg televangelist, because its printed spoof was too over-the-top to be credible, Gatewood notes.

Richmond is also the locus of a controversial spoof. On two occasions in recent months, Dave Saunders, head of the ad company Madison+Main, says he's been punked on the Web. In one case, a phony Web site called “MadisonVain” satirized the company and Saunders. Later, Saunders says, profanity filled Twitter messages were sent to people supposedly from him. “I don't use profanity,” he says.

It is possible, he adds, that an individual at a competing company may be responsible for the frauds. “I'll be meeting with the president of that firm next week and if I don't get satisfaction, I may sue,” he says. One of the big problems, he adds, is getting the messages off the Web. He did so by appealing to Twitter. “For the average person, it is hard to just call Twitter up,” he says.

Identifying perps was a big problem for Freund. Court records she filed charge that Domains by Proxy refused to tell her who had registered the margaretfreund.com Web site name, claiming that whoever did so paid to keep it anonymous. She also sued GoDaddy.com for allegedly serving the name and mail and HostforWeb for helping manage the site.

On March 4, Freund lost her case when Mount's lawyer, Tom Roberts, successfully filed a demurrer. Roberts says that “there was no defamation” and the “alleged defamatory statements were opinions and not factual, capable of being proven true or false.”

Richmond Circuit Court Judge C.N. Jenkins ruled that Freund cannot reinstate her suit. Her lawyer, Alex Simon, could not be reached for comment.

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