Developing rules on online anonymity
(Second of two parts)
As lawyers often advise their clients, being alert to the possibility of anonymous online postings in advance can be a huge advantage to a company looking to prevent or minimize the damage flowing from mystery posters.
To the extent their resources allow, companies should seek out message boards — which have proliferated by leaps and bounds within the past three years — likely to elicit posts involving their industry or company, monitor them regularly, and take appropriate action at the first sign of trouble. If any of these types of posts are caught quickly, a company may even be in a position to respond on the same message board, or issue a press release to defray the damage.
As has been argued by defendants’ attorneys in the recent past, one remedy for undesirable speech on the Internet can be “more speech” instead of “enforced silence.”
It may very well turn out that future court decisions in various parts of the world will hinge on whether plaintiff took steps on the same public message boards, where they were allegedly damaged, to minimize their claimed damages by endeavoring to dispel false statements online. To the benefit of posters and hosts alike, the ability of a company to do this will also demonstrate its ability to give anonymous posters notices of its intention to take legal action, giving the posters an opportunity to act to prevent a host from being compelled to reveal their identities before a subpoena takes effect.
How will posters prevent disclosure of the information? They may continue to use the typical method of making what’s known as a motion to quash the subpoena; that is, a request to have the subpoena invalidated in whole or in part.
Because of successes in many cases now, the most common bases for these motions will revolve around freedom of speech, privacy interests, and even relevance and materiality of the requested information to the allegations contained in the original complaint.
As this happens, anonymous posters will also have to honor the developing standards and continue to take the initiative to quash subpoenas that may more closely comply with judicial guidelines. And once the guidelines are more widely accepted, these same posters will have to wonder if their legal costs will continue to be subsidized by public interest groups.
ISPs (Internet Service Providers) themselves will have to be ready to modify their privacy policies, as has been happening, to stay in line with fast-changing court decisions that will work the boundaries of when their subscribers’ personal identity information may be disclosed in private suits.
Robert S. Mulaney Esq., who says he was my classmate in Corporation Law under Prof. Coker at Yale Law School, e-mailed me only to emphasize, in relation to the first part of my article last week, for which I am grateful, that if a plaintiff is flushing out the true identity of an “offending poster,” experience suggests that the worst is over. And I agree with Robert, of course, but as he says, once the posters can no longer maintain their anonymity, they know that they will remain potentially liable for the consequences of their statements and that the complaining party now “knows where they live, as the saying goes.”
To all the others who e-mailed their comments from quite a number of countries around the globe, I may have been able to answer in this second part, their queries. And I will, of course, endeavor to answer all the others before the end of this week.
How these disputes will be brought to their conclusions depends on how strong the claims for damages are in the first place, and how likely it is that the identified poster has the resources to pay for any damages recovered. Many times, an agreed-upon injunction or a public retraction resolves the matter, especially if the identified wrongdoer does not have significant financial resources to pay a large damage award.
Whether you are a potential plaintiff (that is, someone who has been defamed) or a potential defendant (that is, an anonymous online poster), familiarity with the new standards courts are requiring can help you and your attorney craft a strategy that has a better chance of being successful.
If you take careful steps to strengthen your legal position, it is still possible to get accountability for defamation online, even when it is posted anonymously, while ensuring that free speech protection derail bad-faith suits.
Remember that when companies worldwide first began to seriously pursue these kinds of cases, here’s how it worked, and I am certain those who sent me e-mails asking for validation of their position on this will agree with me.
At the first salvo, even before a formal complaint is filed, lawyers for a plaintiff must send what we all know as a “cease and desist” letter to the message-board host to “stop the bleeding” by removing the offensive post from its server. Typically, lawyers also would request that the ISP or host retain whatever evidence it had on the message’s origin, taking it out of its ordinary record disposal procedure and thereby avoiding destruction of evidence.
Confronted with this type of dispute, the plaintiff’s lawyers typically tried to have the ISPs or hosts give them the IP address and originating computer server of the posting, something most would not do voluntarily.
As a result, some lawyers would swiftly file a lawsuit and seek quick discovery — that is, production of evidence as required by law — from the host to identify the actual offending party before the trial went cold.
At this point, lawyers had to think fast and hard, because they were forced to commence a lawsuit without the benefit of a lot of the standard information required by law.
According to my classmate, Robert, it is normal for lawyers to “want badly to know who they were suing.” In the US, according to him, thanks to a provision of the CDA (Communications Decency Act), lawyers were not generally able to sue the message-board host because the CDA immunized them from lawsuits based upon offensive materials originating from someone else.
Since lawyers could not sue the message-board host and didn’t know the real identity of the poster, many of them sued one or more “John Does” — essentially a “placeholder defendant meant to represent the person being sued until such time as the defendant’s real identity was discovered.”
And of course, there was the question of where to bring suit. All lawsuits require a plaintiff to establish that the court has jurisdiction — that is, controlling power and authority over both the dispute and the defendant. Without knowledge of the identity and location of a defendant, it was unclear where to sue him or her. Here, attorneys got around the problem based upon a concept available in every state, according to Atty. Mulaney, known as “long-arm jurisdiction.”
In simple terms, this means that a state court can exercise its jurisdiction, even over an out-of-state defendant, if that defendant has caused harm within the complaining party’s state and that harm is the specific basis of the lawsuit. According to Mulaney, additional solutions to the problem of where to sue existed if the lawsuit raised a “federal question,” that is, a question arising out of the US Constitution or a federal statute, because in such cases, a federal court would be a proper venue — the only question being which state’s federal court should be used.
As much as anything else, the paramount concern in matters such as these has always been speed, particularly if the message-board host refuses either to turn over any information or even to isolate it. A lawyer’s only immediately meaningful way to identify the mystery poster was to obtain a speedy subpoena from a court, ordering the host to reveal the requested information.
The world position, which includes the Philippines’, is that a person’s decision to remain anonymous is an aspect, fundamentally, of the freedom of speech and of expression.
An English high court implicitly recognized that the Internet functions in the global world as a kind of speaker’s corner in England’s Hyde Park, a public place where ordinary people may voice their opinions to anyone willing to listen. The court extended free-speech protection to speech on the Internet, acknowledging that the Internet “constitutes a phenomenally vast platform from which to address and hear from a worldwide audience of tens of millions of readers, viewers, researchers, and buyers.”
Through the use of chat rooms, Facebook, Twitter, etc., any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.
As public interest groups and civil society seized on these concepts and continued with a direct assault on what had been a very successful and quick method of silencing online critics in the civilized global world, jurisdictions have slowly but increasingly shifted their thinking and have responded favorably to arguments that online anonymous speech deserves constitutional protection.
Firm rules have to be developed in state jurisdictions all over the world in this respect.
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Thanks for your e-mails sent to jtl@pldtdsl.net.
