April 4, 2002 - Fish hobbyists on the Internet have been gurgling about something other than their tanks lately. It has to do with freedom of speech, and it impacts all of us who log on.
WHEN DAN RESLER complained last May on the Aquatic Plant Digest about a bad experience he had with PetsWarehouse.com, he didn't know it would cost him $4,150. Nor did he know he'd become a symbol of the right to speak one's mind on the Internet.
Now Resler, as well as the others named in a lawsuit filed by the PetsWarehouse.com owner, is just that - living, breathing proof that what you say online can come back to haunt you.
"Avoid Pet(s)Warehouse(.com) plants," Resler wrote on May 15, 2001, in a message to other APD members that detailed how an order he placed arrived later than he'd expected, and with higher shipping charges than he'd been told at the time of sale.
(Resler mistakenly dropped the "s" off PetsWarehouse.com, an error he corrected in a later post.)
Another list member, Jared Weinberger, who maintains his own Web site about planted tanks, told the list in his post that he was going to put a warning about PetsWarehouse.com in his site's links section.
Still others weighed in with similar bad experiences with the company, and even pointed to the company's poor Better Business Bureau rating - not unlike a group of friends sharing stories about the bad service at the local restaurant.
Except that these complaints, since they were posted on the Internet, were read by the store's proprietor.
Online, one man's freedom to grouse became another man's claim of defamation.
Two weeks after the online discussion, Robert Novak of PetsWarehouse.com, based in Copaigue, N.Y., sued Resler, Weinberger and several other members of the Aquatic Plant Digest list. He also sued the service that hosts the list, and the woman who maintains it as a volunteer.
The initial papers, filed in federal court, asked for $15 million in compensatory and punitive damages.
Novak claimed humiliation, emotional distress, libelous statements and the dilution of his trademark as a result of the APD posts, which have led, he said in court papers, to "headaches, nausea, nervousness, anxiety, embarrassment, humiliation, and mental distress."
As news of the case spread around the Internet, fish tank enthusiasts from around the world began donating to the APD Defense Fund, to help those named in the suit defray legal costs. Banners were posted on various fish hobby Web sites directing various people to another site created about the case.
"Consumer opinion is priceless," reads one. "Welcome to the Internet. Please refrain from expressing your opinion while you are here," says another.
Some people who posted those banners got "rewarded" by being named by Novak in another legal complaint. They shouldn't be able to use his company name that way, he said.
In late February, after months of legal wrangling and mounting costs, five of the defendants acquiesced and settled out of court with Novak.
Weinberger, for one, agreed to post a banner ad for PetsWarehouse.com on his site for 145 days. Another defendant who maintains fish hobby related sites agreed to similar terms.
JoAnn Vandersarl agreed to give Novak a domain name she owned, PlantedTank.com. Her offense? Having posted the defense fund banners.
So why was Resler the only one who forked over cash?
Novak maintains that Resler, who happens to be a computer science professor in Richmond, Va., hacked into his computers. Resler maintains that he wasn't hacking - he says he was able to access his order information, after the legal fight began, through a security hole in Novak's e-commerce system.
Resler agreed to the cash settlement, which was half of what Novak said it cost him to repair his computer system.
"It was a hard pill for me to swallow," said Resler.
Said his attorney, Hilary Miller, "Everyone has to learn the hard way that freedom of speech is not free."
Meanwhile, another amended suit was filed by Novak in late March, and continues.
"They have a license to defame until they're shut up by the court," said Novak. "It's just not right what these people are doing - they're going overboard. These are worse than the people who stand in front of these labs where they test primates."
Meanwhile, John Benn, an attorney in Sheffield, Ala. who has been working with the APD group and maintaining the defense fund and associated Web site, says it is Novak who is going overboard.
"You can write about Enron without violating the Enron trademark. He doesn't want anyone to say anything negative," said Benn. "Free speech, trade infringement, the responsibility of the ISP. If you want to find a legal issue involving the Internet, this case is it."
And if you want to find a case that shows we dwell in litigious waters, this case is it, too.
What it all proves, says Miller, Resler's attorney: "It's a fundamental feature of our judicial system that anyone can sue anyone for anything. There's no gatekeeper at the door to determine if it's a meritorious claim."
And once you're sued, you've got to answer the claim - which could cost a fortune. Says Miller, "I have no idea if what they said was true or valid. All I know is that Mr. Novak got them to spend a lot of money to defend themselves."
So the lesson is we all have to watch what we say?
"How could that be bad advice, anyway?" Miller said.