A case making its way through the Maryland courts may determine how far companies can go to track down consumers who've written scathing comments about them on Web sites. In Forensic Advisors v. Matrixx Initiatives, now before the Maryland Court of Special Appeals, a pharmaceutical company is attempting to force a newsletter publisher to disclose his subscriber list.
The company wants to use the list in connection with a lawsuit it filed against numerous unidentified people who posted derogatory comments about the company on Internet discussion boards. Nine privacy and civil liberties organizations have filed a friend of the court brief arguing in favor of protecting the list under a Maryland law that protects journalists' sources.
It also argues that the list is protected under the First Amendment, since disclosure of the list would deter readership and violate constitutionally established privacy rights.
The brief, filed by Public Citizen, the American Civil Liberties Union of Maryland, and a virtual whos who of consumer watchdog groups, argues that releasing the names on the subscriber list would violate long-established rights in America, including the right to remain anonymous.
"Anonymity has a long and celebrated history in the United States, beginning with the pseudonymous advocates of the United States Constitution," the brief states. "People choose to main anonymity regarding what they read for many reasons, including forestalling assumptions about their beliefs and associations, maintaining privacy, and avoiding harassment, threats, frivolous litigation, or social stigma."
The brief argues that Maryland news media privileges bar disclosure of sources and information collected in the course of reporting. It says the First Amendment right to read anonymously bars disclosures of readers identities.
Matrixx Initiatives, Inc. sells an over-the-counter nasal decongestant that has been widely alleged in the press and in litigation to cause the permanent loss of the sense of smell. The companys management has also come in for heavy criticism.
In late 2002 the company began filing lawsuits against numerous anonymous individuals, alleging defamation, interference with contractual relations, and trade libel, in response to statements that had been posted anonymously on various Web sites.
After a stock newsletter, the Eyeshade Report, published a negative article on Matrixx in 2003, the company subpoenaed publisher Timothy Mulligan, seeking discovery of his sources, notes and the names of every person who had received the negative report on Matrixx. When Mulligan moved to overturn the subpoena, his request was denied, resulting in the current appeal.
