Anonymity and Torts
[Slaw editor’s note: John Gregory is, among many other things, a Slaw member and also the manager of a highly successful and interesting private email list, ULC_ECOMM, on e-commerce and related matters. He is kind enough to allow Slaw to republish his provocative contributions to that list. We hope that, as they do on his list, they will stir up some discussion here on Slaw.]
Internet Law News today tells us this:
YALE STUDENTS NAME ALLEGED HARASSER IN WEB LIBEL SUIT [Boston.com]
Two female students at Yale Law School who say anonymous, defamatory comments were made about them on the Internet identified one of the defendants in their federal lawsuit. The move threatens to expose law students and renews debate about whether anonymous Internet scribes should be identified – and held legally responsible – for malicious postings.
Is there much a ‘debate’ in Canada, or should there be, over finding out who has posting such nasty stuff as was involved in the Yale case?
How does this compare with the BMG case in which the Fed Court refused to compel the release of names of alleged file sharers?
Is the difference the fuzziness of the evidence of the tort, or of the identification of the perpetrators, or of the degree of awfulness the court assigns to the tort?
How much evidence of identification should one have to have before getting an order against an ISP or web hoster for disclosure of identity?
Does it matter if there is some arguable justification for the behaviour or comments?
What else is relevant?
I do not think there is any controversy that someone who has defamed on the Net can be just as liable as the person who does this offline.
Is there much a ‘debate’ in Canada, or should there be, over finding out who has posting such nasty stuff as was involved in the Yale case?
In my experience there isn’t nearly the kind of debate about anonymity in Canada that there is in the US. I suspect this is related to the differing understanding of free speech and free expression, especially in the context of Canadian Charter and human rights jurisprudence.
Should there be? I am a staunch believer in privacy rights in most circumstances, but in cases like bulletin boards I’m a lot less staunch. This is especially the case in situations where obvious personal harm is the result.
How does this compare with the BMG case in which the Fed Court refused to compel the release of names of alleged file sharers?
I would say that in the case of file-sharing, the harm is a lot harder to prove than in the case of vicious defamation, and that the court has much more incentive to compel the release of identities in the latter case.
Is the difference the fuzziness of the evidence of the tort…
In the case of file-sharing, it’s not often clear that a tort has occurred even if the file-sharing did occur, whereas there is little fuzziness around the occurrence of the comments in the Yale case. They occurred, and the comments were patently offensive and defamatory.
… or of the identification of the perpetrators[?]…
The identity of the perpetrators was never fuzzy, as they were always actual persons, they just enjoyed some anonymity in that particular forum. Anonymity is not (to my knowledge) an essential component of the right to free speech/expression, and thus deserving of much protection. There are circumstances where anonymity may be extremely valuable (in cases of certain kinds of political speech, for example), but this clearly wasn’t one of those circumstances.
…or of the degree of awfulness the court assigns to the tort?
This is usually pretty determinative in any torts case, no? It is in my (admittedly limited) experience.