SIPA has joined with three other First Amendment groups in urging the Maryland Court of Special Appeals to adopt strong legal protections for the anonymity of online posters in a July 28 friend-of-the-court filing. The amicus brief was filed in a case, Independent Newspapers, Inc. v. Brodie, where a publisher has been ordered to identify one or more online commenters.
The lawsuit revolves around unflattering postings about a real estate developer made to a newspaper Website forum in a thread about historic preservation. Among the remarks were allegations that the Dunkin Donuts locations owned by the developer were “dirty and unsanitary looking,” with trash allowed to pile up.
The developer sued the Website forum’s host, Independent Newspapers, Inc., and three “John Doe” posters responsible for what the developer considered defamatory comments. Although the court dismissed the case against the newspaper company on the basis of the Communications Decency Act, a federal statute that gives liability immunity to Website hosts for the postings made by others, the court ultimately ordered the newspaper to identify any posters who commented upon the restaurants.
Independent Newspapers, Inc. appealed the order to identify posters.
The Reporter’s Committee for Freedom of the Press filed a brief in support of the newspaper’s appeal, which SIPA joined. Also signing on to the amicus brief were the American Society of Newspaper Editors and the American Civil Liberties Union of Maryland.
SIPA has in recent years filed or joined several amicus efforts in state and federal appeals courts to support First Amendment or intellectual property issues of importance to its members, including support of a subpoenaed publisher in Forensic Advisors, Inc. v. Matrixx Initiatives, Inc.; support of a publisher trying to protect the secrecy of subscriber names in Lubin v. Agora, Inc.; and in support of the publisher in the copyright infringement lawsuit, Lowry’s Reports, Inc. v. Legg Mason, Inc.
Extent of anonymity at issue
Chad Bowman, an attorney with SIPA First Amendment counsel Levine Sullivan Koch & Schulz, L.L.P., said that although the First Amendment has long been deemed to offer protection to anonymous speech, courts are grappling with the extent to which that protection applies to online posters.
No federal appeals courts have squarely decided the issue of what standard governs requests to identify anonymous posters. Federal trial courts and state courts have adopted a variety of approaches that range from permissive discovery so long as there is no “improper purpose” to more speech-protective approaches that require litigants to demonstrate that disclosure will advance real claims and that require courts to balance the litigant’s need against a poster’s First Amendment interest in anonymity.
“The real risk in this case, and what SIPA determined made it worth joining this amicus effort, is that an appeals court could adopt a weak standard for unmasking anonymous speakers that would then govern future subpoenas in Maryland and be cited as persuasive authority in other jurisdictions,” Bowman said.
SIPA Executive Director Henry Greene agreed. “Freedom of speech will always be viewed as a critical issue to our members, and the internet component of this amicus has particular relevance. When the opportunity to join the amicus came across my desk, I immediately sought input from the executive committee of SIPA’s board of directors as well as the board’s Government and Legal Affairs committee,” he said. “Both committees unanimously supported SIPA’s participation.”
Case built on two points
In this case, the newspaper company urged the court to adopt a speech-protective test that required (1) the plaintiff to demonstrate that he had a viable claim for defamation and balance his interests against each of the anonymous speaker’s interests, and (2) require notice to the anonymous speakers so that they (rather than the newspaper) could defend their anonymity.
The amicus brief supports each of these arguments.
“A case-by-case, individualized analysis ensures the availability of the injured to ask courts for redress yet guarantees that online speakers will not enjoy broad scale immunity from liability for any harms caused by their misdeeds,” according to the brief. “By protecting the vital First Amendment interests embodied in anonymous speech, this court will assure that the cloak of anonymity will be removed only when necessary and only after the court considers the interests of the anonymous speaker.”
The amicus brief also highlights the need for the law to impose an obligation on the party seeking to uncover a poster’s identity to attempt to notify the poster, perhaps through the forum itself. Doing so would permit the actual poster — rather than the Website host, at its own expense — to fight a subpoena.
“Without notice to the anonymous defendants, the burden to defend their anonymity falls upon the Websites that opened their forums to the speakers,” the amicus brief argues. Especially for print publishers that “continue to struggle against dipping profits and tighter budgets,” an increasing number of subpoenas relating to posters might cause these publishers to close down chat rooms and bulletin boards, “significantly limiting the benefits the Internet offers.”
Notably, the amicus brief urges a legal test that protects online speech and the hosts of discussion forums, rather than a particular outcome in the case.
The Reporter’s Committee is expected to post a PDF copy of the amicus brief online at www.rcfp.org/news/documents/index.php.
(Editor’s Note: This article was prepared by Chad Bowman of SIPA First Amendment counsel Levine Sullivan Koch & Schulz, L.L.P., 1050 17th Street, N.W., Suite 800, Washington, DC 20036 202.508.1100 Fax: 202.861.9888 E-mail: cbowman@lskslaw.com Web: www.lskslaw.com.)
It’s the kind of story all specialized-information publishers smack their lips over when they hear it — a publisher comes up with an idea for a new product and pulls nearly $3 million in less than a month with the product’s launch.
It may sound like the industry’s version of a “they lived happily ever after” fairy tale, but the story of the Canonbury Publishing Ltd launch of a new day-trading software package came close to hitting the $3 million mark in 14 days earlier this year. Nick Laight, Canonbury’s managing director, told attendees at SIPA UK Congress 2008 earlier this summer that the launch of The Ultimate FX Predictor software made £1.42 (US $2.8 million) in 14 days by following what he termed a “simple e-marketing plan.”
Laight identified six steps in the plan:
1. Identify a hot subject with a high price point and well-defined unique selling proposition (USP).
By doing competitor research and looking at customer feedback, the company identified forex (foreign exchange) day-trading software for home-based uses as a suitable product. The USP is that the software is easy to use and allows people to trade in the markets throughout the day (outside working hours). Canonbury stripped the usual complex technical indicators out of the interface and replaced them with simple buy and sell signals. It priced the product at £1,947 (US $3,836) plus tax, a proven price point for its prospects and comparable offers in the marketplace. Other offer ideas included lifetime and alliance memberships, product bundles and seminars.
2. Warm up your prospects early.
Canonbury did an e-blast on March 14, one month prior to the official product launch, asking for testers (who would get the software free) and outlining the benefits and USP of the software. That effort generated a response of more than 20%, with some 2,000 recipients asking to be testers. The company selected a dozen testers, who went through the training course on the software and started trading using it. The testers were required to give the company feedback on their trading performance and the course software itself. Laight noted that the company did not make a dedicated file of the 2,000 who enquired about the test, but would do so if it were to do a similar launch now. “This would allow us to go back with a greater frequency of sales messages without bombarding non-enquirers,” he said.
3. Get your prospects to write your copy.
The company got an unexpected bonus from the tester e-mail in that more than 500 people who asked to test the software gave reasons why they thought they should become a tester. These reasons provided a number of marketing copy points:
What attracted them to currency trading (key benefits);
Their positive and negative experiences with competitors’ FX products;
What they were looking for in an “ideal system”; and
The objections they would need answered before investing in a system.
From these responses, Canonbury created a “copy fodder file” of edited down versions of the feedback and sent the file to the copywriter as part of the information brief for creating the marketing. The copy fodder file proved so successful that the company now tries to gather similar material for all new promotional briefs. “Our copywriter is able to stand in the shoes of our target audience and totally empathize with their outlook, hopes and fears, and second-guess their objections,” he said. “This is pure gold for any copywriter!”
4. Maximize interest with a countdown.
Canonbury set the launch date for April 11 and started to e-mail its lists three weeks prior to that date. It offered exclusive discounts to previous buyers of financial trading systems and unsuccessful tester applicants, leaving the discounts open for only 14 days after the launch date. As testimonials and positive feedback started coming in from testers, this information appeared prominently in the countdown reminders.
5. Launch!
In the first three days of the launch, between April 11 and 14, the company generated 336 sales that grossed £654,000 (US $1.29 million). Following the launch, Canonbury did another series of countdown e-mails, this time to the April 25 deadline date for the discounts (14 days after the launch). During that period, the company totaled 740 orders for £1.425 million (US $2.8 million) gross. Marketers continued to insert traders’ testimonials prominently in the company’s regular e-zine broadcasts with a link to the promo page on the Website.
6. Roll out!
After hitting its own core lists (at first with e-mail messages then with newsletter inserts and direct mail), the company rolled out to third-party joint venture partners. By the time of the SIPA UK conference in early July, Canonbury had sold more than 2,300 units and generated £4.6 million (US $9.06 million) in gross sales.
Nick Laight, Canonbury Publishing Ltd, 1 Sekforde Street, London EC1R 0BE UK 44.0.20.7107.2234 E-mail: nicklaight@yahoo.co.uk Web: www.canonburypublishing.com
