Anonymous Online Commentary And Defamation

Many people comment anonymously on blogs anonymously believing that their identities will never become known. Whilst the internet affords a relative degree of  anonymity, it can also conceal cyber-bullying, defamation and other forms of proscribed speech.

On the other hand, internet freedom of expression provides an outlet for commentary and meaningful discussion on a broad spectrum of important public issues, across a wider forum than would previously have been possible without the technology.

A lot of internet commentary, aimed at public figures, or people whose actions have placed them in the public eye,  is neither gratuitous nor defamatory.

Anonymous speech is a privilege afforded to those who operate in internet forums and in many ways  a necessity for those who wish to discuss issues, but would otherwise face reprisals and recrimination  for making their opinions known.

However anonymous online speech is  slowly being eroded as Court decisions are increasingly being made to divulge the identity of online commentators.

Since the case of New York Times v Sullivan, US Courts have recognised that the sensibilities of public figures must be subordinated to the First Amendment right to comment on issues of public concern.

The law of internet defamation is made more complex by the fact that the US adheres to different views on defamation than many Commonwealth countries.

The  US expressed their disdain for the Australian defamation judgement in Gutnick v Dow Jones delivered by a Victorian Court.

Recently, the US passed laws to the effect that if a defamation order was obtained in a foreign court it would not be recognised under US law, unless it conformed with  First Amendment rights to free speech.  The Speech Act forbids a US Court recognising and enforcing a foreign judgement for defamation unless the defamation law applied by the foreign court provides at least as much protection for freedom of speech and the press as the US Constitution or the party opposing the enforcement and recognition of the foreign judgement would have been held liable for defamation applying the First Amendment, the US Constitution and the laws of defamation operating in the US State where  a party seeks to enforce it.  A party seeking to have a foreign defamation judgement recognised by a US Court must also show that the foreign court’s exercise of jurisdiction over the defendant meets US due process requirements.

The Speech Act also prevents a defendant who is seeking recognition and enforcement of a judgement against an interactive service provider unless the judgement affords protection consistent with s230 Communications Decency Act 1996, the US safe harbour provisions. The Communications Decency Act 1996 was enacted by the US Congress in an attempt to regulate indecency in the form of pornography in relation to minors and obscenity online, however judicial decisions have judicial challenges have narrowed the scope of it’s operation in relation to indecent speech .

s230 of the Act has been interpreted in a way which deems internet service providers not to be treated as publishers or speakers and therefore legally liable for the words or content of third parties who use their services. It affords some  protection to online service providers and users from legal actions based on the content of third parties  be treated as the publisher or speaker of any information provided by another information content provider.  The rationale of the legislation was to immunise ISPs and other online intermediaries for torts committed by its users.  Whilst the Congress wanted strong criminal laws to deter the trafficking in obscenity, stalking and harrassment through the use of a computer, s230 recognises that need for immunity for service providers to limit their exposure to liability.  Congress didn’t want the threat of tort suits to chill freedom of speech on the internet by making service providers liable for all material disseminated through their networks.  However there are well-defined exceptions to the scope of the immunity afforded by s230, and case law has  interpreted the extent to which interactive service providers are responsible for policing their networks and when they will qualify for immunity from defamation and negligence claims for harm which flows from third party content. Website operators are not protected by Section 230 where they create the offending content rather than merely publish it.

However anonymous speech online is being eroded as Courts increasingly grapple with the question of whether they should unmask the identity of online anonymous speakers. Defendants have started petitioning Google and other internet service providers to turn over information revealing the identities of those who they allege have defamed them or injured them by engaging in cyberbullying.  People who have been affected by harmful content online have subpoenaed Google and other internet service providers such as YouTube to either or confirm the identities of persons who they suspect are behind the posting of the relevant content.

Legal action has already been taken against Google to force them to reveal the details of anonymous users.  A precedent was created when a Vogue cover model Liskula Cohen successfully sued Google to unmask the name of an anonymous blogger who had written the words “skanky”, “whoring” and “ho” underneath her online photographs.

The controversial debate over the limits of anonymous internet speech has continued as Courts continue to make decisions about the limits of legal protection for anonymous online speech.  Anonymity is an important shield for ordinary citizens and political dissenters to protect themselves from tyranny.

Earlier this month in the UK, Mr Justice Tugendhat, in a London High Court granted permission for Louis Bacon, an American billionaire to serve an order for discovery upon three websites to disclose the identities of his alleged defamers.

Bacon now has to ask the publishers behind Wikipedia, Automattic who own the  blogging platform WordPress and the Denver Post to track down the identities of the the online commentators he says posted libellous content about him.

Bacon wants to launch defamation proceedings against a number of online commenters, all of whom used the cloak of anonymity to publish their views.  The commenters used  ‘screen names’ or  ‘ handles’ to post what he alleges constituted libelous material about him on these websites

A Norwich Order is an order used to seek discovery of material under civil procedure laws. In this context, it was sought to discover the identity of the libellous commenters by serving it upon the websites on which the commentators had posted.

Norwich Pharmaceutical orders were sought by Bacon in the London Court  to seek the discovery of the libellous commenters, but the orders issued still need to be served upon the websites which hosted the allegedly libellous comments and complied with. Bacon wants to bring action against the online commenters  for defamation or at the very least deter them from posting further comments about him.

The problem is however that  the US-based companies could legally ignore or refuse to comply with the orders

On the internet, defamation is complicated, given that different jurisdictions have different laws. The challenge for Bacon is to get the US served with the British Norwich Pharmaceutical Order to agree to comply with it.

In his High Court  judgement, Judge Tugendhat said civil procedure rules enabled him to grant Bacon’s application against the US defendants, but in view of these differences in law, cautioned future claimants seeking relief to put before a UK court  evidence regarding whether a particular method of discovery is permitted  by the law of the country in which the order for discovery is to be served.

The Wikimedia Foundation, and Automattic, which owns WordPress, have already publicly stated they are only prepared to comply with a US subpoena for  such data, not a Norwich Order.

Initially, the Wikimedia Foundation had informed Bacon’s solicitors it would surrender details of the commenters if served with a court order, however subsequently qualified its statement by making it clear that it would be responsive to a US subpoena only, rather than a Norwich Order granted by a UK Court.

Bacon decided to bring his case in a UK High Court rather than seeking relief before a US Court, having been victorious in a similar matter involving UK based website host Just Host last year.  Just host was prepared to comply with the order. However Just Host is a UK based website.

There have been some important precedents in the US raising the issue of internet anonymity and online speech, in particular preliminary motions where the issue has arisen as to whether there is sufficient evidence of defamation to justify the disclosure of an anonymous commentator’s identity.

However it is important to bear in mind that these decisions are made under US law, rather than UK law.

Having said that,  it will be easier to prevail in a motion for preliminary judgement than in a final judgement, due to the different standards which apply in pre-trial motions.

In the US the Courts, in a motion to seek the identity of anonymous internet posters, the Courts apply what has become known as the Dendrite and Cahill analysis. The petitioner must show the poster has been notified of the motion, has an opportunity to appear, that the exact statements have been put forth by the anonymous poster and the allegations meet a prima facie standard.

The trial court in the recent Maxon case (see below) stated that ultimate goal of applying the test was to balance the rights of a person not to be defamed wiht the fre speech rights of anonymous posters.

Applying that test the Court held that the Maxons hadn’t satisfied the hypothetical summary judgement test because the literary and social context of the statements rendered them nonactionable opinions as a matter of law.

The Maxon v Ottawa Publishing Company decision was an important US case which attracted a lot of interest in the internet community, raising issues of online anonymous free speech and the first amendment.

An Illionois newspaper, The Illionois Times, as a result of a narrow 2/1 decision,  was compelled by an Illionois appellate court to disclose the names of online anonymous commentators in a defamation  action.

Although the majority ruled that the libelous character of the comment meant it couldn’t be protected as free speech, the dissenting judge felt that no case for defamation had been proven as no reasonable person would consider the comments before the court as being fact rather than  opinion.

The facts of the case were as follows. After having their application to convert their home into a bed and breakfast refused, as the application contravened city ordinances, the Applicants in this case, Donald and Janet Maxon lobbied the Ottawa Plan Commission to seek an amendment to the Ordinance so that their Application could be granted.

The Illinois Times published the story on their online news website mywebsitetimes.com, attracting several comments from  anonymous commentators. A couple of posts suggested that the Maxons planned to  bribe the Commission to obtain approval for their bed and breakfast establishment.

The Appellate Court, unlike the lower court,  categorised the relevant post as a statement of fact. At law, statements of opinion are protected as free speech, whilst assertions of fact are not.

Much depends on whether a Court deems a comment to be an opinion or a statement of fact, a seemingly simplistic distinction, but one which case law suggests Judges have held vastly different views on when evaluating the nature of a statement.

The following statement by the US Supreme Court highlights the difficulty of separating out statements of fact and statements of opinion:

There is no artificial distinction between opinion and fact; a false assertion of fact can be defamatory even when couched within apparent  opinion or rhetorical hyperbole. It is well established that statements made in the form of insinuation, allusion, irony or question, may be considered as defamatory as positive and direct assertions of fact. Similarly a defendant cannot escape liability for defamatory factual assertions, simply by establishing that the statements were a form of ridicule, humor or sarcasm.”

In determining whether a statement is a statement of opinion or fact, the  context of a statement  is also important in addition to the way a statement is presented and its phraseology.

The majority judges held that the  alleged defamatory comments were not presented as opinion, whereas the dissenting Judge, Judge Daugherity’s position was that no reasonable person would take such Internet forum comments to be factual. He treated it as a matter of conjecture and surmise and a statement of the commentator’s subjective theories.

In the area of bribes, there may also be a cultural disconnect between the way a Judge perceives the meaning of a bribe and the way a reasonable person may construe it.  Whilst pork barrelling and campaign donations in exchange for favourable treatment may be seen by the public as being bribery, they may not meet the legal definition. However under the laws of defamation the Judge is involved in the hypothetical process of estimating what the reasonable person would interpret a term to mean.

The majority stated said they weren’t prepared to perceive everything on the Internet as hyperbole or opinion, rather than fact.

The dissenting judge expressed his concern that if the commenter’s identity were revealed, and the defamation case was not proven to the requisite legal standard, this would cause harm as the commenter’s identity cannot be ‘unrevealed’.

The majority judgement rejected the lower court’s analysis that the Dendrite requirement, mentioned above, requires that the Court balance a defendant’s right of anonymous free speech against the strength of the Plaintiff’s prima case.  The Court said that for the purpose of applying the rules for discovery, this went beyond the requirements for discovery. The majority of the court found that once the Plaintiffs had made out a prima facie case of defamation the Plaintiff’s motion will succeed.

Many free speech and journalist organisations filed amicus briefs supporting the protection of  anonymous online speech, arguing that the public’s access to news and information will be irreparably harmed if online speakers aren’t protected and their first amendment rights are violated.

Anonymous speech not only allows people to speak without fear of  retaliation and public disclosure and embarrassment, it also gives marginal voices a chance to contribute to public debate.

As stated, the Illionois Times decision is one of several landmark suits  in the US dealing with the issue of online anonymity issuing a challenge to courts as to how to navigate the legal and policy issues surrounding anonymous free speech.

An Indianpolis newspaper was forced to disclose the details of online commentators after a charity organisation filed a defamation suit against several commenters who had criticised the performance of it’s new head.  In this scenario the online commentary was posted on the website of a journalist organisation.  This didn’t prevent it from being classified as outside the scope of the State’s press shield law protecting reporters being compelled to disclose the source of any information they procure in their duties for a newspaper.

The Court accepted the argument by the Plaintiff that such postings can’t legitimately be characterised as covered by a form of press privilege, being  ‘sources’,  and that disclosure of the source of message board commentary doesn’t impair a newspaper’s ability to either collect information or publish news.

In this case the Applicant for the preliminary discovery motion was Jeffrey Miller,  the former head of a large non-profit organisation providing job and life skills training programs to about 25,000 students in the Indianapolis area.

In 2010, newspapers and local news stations reported that the organization was forced to abandon a construction program amidst suspicions of misappropriation and missing donation funds deriving from Miller’s tenure. Anonymous online commentators, one of whom was discovered to have been Miller’s predecessor posted comments about his greed and “likely criminal activity”. One of the posts sought an investigation by the Prosecutor’s office.

Online commentary occurred on the website of the Indianapolis Star. The troubling aspect of the Court’s ruling divulging the identities of the online commentators was the issue of Miller’s status, and whether he qualified as a public figure or official under the Sullivan case.

Miller was the head of   a large charity organization, receiving contributions from both business and government entities which renders the issues of his possible misappropriation of funds one of political and/or public concern. Is the receipt of Government monies however enough to establish a public connection? Arguably, even where no Government money is involved, Miller is an elected official of an organisation. One would expect his sensibilities to yield to the First Amendment right to comment on issues of public concern recognised in the case of New York Times v Sullivan. This should even be the case where he doesn’t strictly qualify as a “public figure” under US libel law.

It is a difficult question when dealing with a charity receiving significant amounts of money and the conduct has a potential impact on matters of public concern, this still doesn’t make him a public figure.  Otherwise this would expose any public figure such as the head of a corporation or any private orgnanisation that receives a small amount of public money.

It is well accepted that private citizens and their reputations are more deserving of protection against defamations than public figures or public officials.

However the public figure component is intended to cover persons who conduct themselves in a manner in which they set themselves up as a public figure, any person generating publicity about themselves, whether in the political, celebrity or sporting realm. Americans perceive that they have a right to respond to the message which that person tries to present about themselves, as otherwise their position and image in the public image goes unchallenged.

Yet within the cursory one page address of superior court judge , S. K. Reid,  there was a conspicuous absense of any discussion of First Amendment issues, whether for the media organisations involved or the anonymous posters.

In my opinion anonymous speech on political topics should be protected, particularly for an anonymous speaker.  Anonymous political speech does negligible harm unless it tends to ‘ring true’ to the audience due to surrounding facts and circumstances.

The question is how a reasonable person would interpret a reasonable criticism of a Politician. Political debate could be seen as opinion rather than fact, particularly derogatory statements. It doesn’t seem to make much sense for one Politician to sue another for defamation, so why should an anonymous commentator have less rights than a Politician themselves.

For all the public knows the anonymous person may very well be an opponent or their associates and the public may not take that opinion very seriously, especially when made under the cloak of anonymity.

Related posts:

  1. Britain may reform online defamation laws
  2. Warner v Wilkins-Fournier & John Does – Online Anonymity under Threat in Ontario
  3. Online defamation case alleging civil conspiracy dismissed
  4. Online Defamation And Website Corrections – Flood v Times Newspapers Limited
  5. Defamation by Hyperlink – Crookes v Newton
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7 Responses to Anonymous Online Commentary And Defamation

  1. VersieC says:

    There’s lots of anonymous comments and reviews around the web, and most of these are negative, some true and some libelous. These kind of cyber-attacks can really cause damage to a business but with online reputation you can protect your business from harm or regain your reputation.

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  6. admin says:

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  7. admin says:

    Hi VersieC,

    Sorry for the late response. You are absolutely correct that it’s a complex issue and there are definitely strong arguments on both sides. Short of litigation, which is very often unrealistic for most businesses and online operators, reputation management and relegation of negative content appears to be the most sensible way of dealing with the kinds of malicious content you refer to.

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