Internet Lawyer Blog
Following from libel proof individuals to the realm of Twitter, and the “Wild-West” approach towards online statements, comes an interesting idea. It is given that most people will communicate anonymously on the web. So, if a person is a victim of libel, then how can he/she recover? The online service provider technically didn’t publish it, but only acted as the forum. The person who published the statement cannot be easily found because the statement was posted under a pseudonym. So, what if the online service provider could be forced to give up identifying information (e.g., name, address, telephone, email, IP address) of the commenting individual? How much is that anonymity worth? Is there a way to actually engage in defamation and get away with it?
How does anonymity make things harder?
Naturally, an unknown person is difficult to sue in court. The amount of damages he or she could pay is difficult to ascertain. While there are rules allowing a lawsuit without knowing the individual’s identity (which is common in some cases), however, it adds the difficulty in discovering the identity of the “Doe Defendants.”
In the case involving James Woods, an unknown individual going by “Abe List” had insulted Mr. Woods, and allegedly directed followers to join his mission. Following this, Mr. Woods took steps to subpoena Twitter for relevant information, and to obtain the identity of the unknown individual from his attorney. The attorney, after the death of Mr. List, was eventually forced to give up his client’s identity. In litigation, this would all serve to increase costs compared to a normal plaintiff, as further discovery would be needed to determine an identity (such as the subpoenas to online service providers, like Facebook or Twitter, and orders to the attorney of an anonymous party).
Furthermore, in the realm of online comments and libel, it opens the potential for anti-SLAPP motion (which is a formal request to prevent actions on the basis that litigation may chill the exercise of free speech rights). If pursuing an unknown individual, it would not be surprising for elements like the anonymity to speak freely, may lead to
further resistance compared to other cases.
Online service provider’s responsibility
The online service provider, in any litigation must respond to a subpoena. However, the information it can reveal will probably be limited due to the applicable privacy laws. However, basic information, like the identity of the account holder may be requested in most cases. Furthermore, in many website terms and conditions (a/k/a “Terms of Use”) the language about the online service provider’s responsibility to comply with law enforcement should exist pursuant to statutory guidelines.
Looking at the idea of removing anonymity through the legal system, this could prove to either act as a boon to online civility or chill free speech rights. It could enable individuals to adequately defend their reputations as litigation can be threatened to reveal the online “trolls” and hold them liable. The potential chilling effect is still remarkable, especially as online speech is known to be more prone to hyperbole. So, the line between satirical hyperbole, or misguided attempts at defamation may become blurred, although, not without precedential rulings to help sort it out.
At our law firm, we assist clients with legal issues related to business, intellectual property, and e-commerce transactions. Please contact us to set up an initial consultation.