April 4, 2011

Why There's No Such Thing As an "Anonymous" Internet Comment

It is accepted wisdom that the internet, like alcohol, lowers inhibitions.  Anonymity allows us to instantly, and irrevocably, comment on anything and anybody we come across online, and forums like Twitter seem to encourage off-the-cuff commentary crammed into 140 characters.

In older times, the onerous effort of publication would require second and third pairs of eyes to pass over the printed word, incorporating plenty of time for sober second thought.  Nowadays, one press of the return key sends our words around the world, with no way to predict their reach or consequences.

For those who rely on anonymity to protect them from the costs of indulging in online defamation, a headache worse than any hangover is in the works, courtesy of the Canadian legal system.  In the last two years,  lower courts in two provinces have issued rulings unmasking anonymous posters so they may be sued for libel.  The courts have accomplished this task in two ways; by issuing Norwich orders and applying civil rules of court.

Norwich Orders
A Norwich Order allows someone who claims to have suffered a legal wrong to obtain a court order requiring a third party to disclose identifying information about the perpetrator of the alleged wrong.  In the case of anonymous posters on blogs, forums and other websites, the victim of the alleged defamation can obtain a Norwich Order requiring the internet service provider (ISP) or the website authors or administrators to provide personal information about anonymous commenters, including their names, email addresses, ISP addresses, etc.

In order to get a Norwich Order, the applicant must satisfy a five-part test:
  • whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
  •  whether the applicant has established a relationship with the third party from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of;
  • whether the third party is the only practicable source of the information available;
  • whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure; and
  • whether the interests of justice favour obtaining the disclosure.
In a 2009 Ontario Superior Court of Justice decision, York University v. Bell Canada Enterprises, the court issued a Norwich order to require Bell Canada, an ISP, to provide contact information for customers who anonymously posted allegedly defamatory comments about York University academic staff.

Rules of Court
In some cases, provincial rules of court permit pre-action discovery which allows the party launching the lawsuit to obtain a court order requiring third-parties (for example blog websites or ISPs) to offer up identifying information about anonymous commenters.  This was the case in a recent decision of the Nova Scotia Supreme Court, Mosher v. Coast Publishing Ltd., where Google and the publishers of a local newspaper were ordered to provide personal information about anonymous posters who allegedly defamed the local fire department.

Voluntary Disclosure
A court order is not the only way to unmask anonymous internet commenters.  Unless they are contractually bound not to, website authors and administrators may voluntarily disclose personal or identifying information about an anonymous poster.  They may be especially motivated to do so when faced with a lawsuit.  For example, in a settlement between now defunct Lawbuzz.ca and AdviceScene, "LawBuzz.ca agreed to disclose and provide AdviceScene.com with the Internet Protocol (IP) and email addresses of four lawbuzz.ca anonymous forum members. These users are alleged to have posted defamatory statements directed against AdviceScene.com."

So what is the anonymous commenter to do?  Aside from educating yourself about what qualifies as libel (a good resource is here), I suggest asking yourself whether you would still press 'enter' if your mother, your colleague or even your boss would be sent a copy of your comment?  Imagining you aren't anonymous acknowledges the reality that anonymity may no longer exist on the internet.  

2 comments:

  1. I know this is a little late but I just started playing with a twitter account and found 3 ppl I know including Shannon. Hi Shannon!

    Anonymity on the internet is actually within your grasp if you spend an hour or so reading up about it. A good place to start might be at tor.eff.org

    ReplyDelete
  2. thanks for the information hopefully can provide value to the many benefits

    ReplyDelete

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