Internet is not a place to hide

For the London Free Press - September 21, 2009 Read this on Canoe

ONLINE ACCOUNTABILITY: It does not shield against civil or criminal wrongdoing

At its inception, the Internet was thought to be an unregulated medium. Online anonymity ensured that Net users could publish anything they desired without fear of repercussions.

But over time, courts have replied with an growing list of legal precedents limiting the anonymity of individuals who engage in unlawful behaviour online.

The issue came to the forefront recently with a decision of the New York State Supreme Court, which ordered Google and its subsidiary to release the name of the blogger who posted defaming comments directed at model Liskula Cohen.

The blog, entitled Skanks of NYC, posted malicious comments about Cohen's appearance and other aspects of her personal life. Cohen wanted to sue to seek personal damages for defamation, but the identity of the blogger was unknown. Cohen brought an action to obtain the identity of the anonymous blogger from Google.

The blogger attempted to argue that the statements were hyperbole, which in the United States, at least, is protected speech and not actionable. They also contended that Internet blogs serve as a "modern day forum" for conveying personal opinions and that in this context any writings cannot be viewed as "factual assertions."

In ordering the release of the blogger's identity, the court held that "protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions."

Though the ruling received considerable media attention, the decision was not novel. In Canada, there have been numerous instances where courts have required Internet service providers to release the identity of an individual if evidence can be produced that the accused has committed illegal or actionable behaviour.

For example, in the Ontario case of Irwin Toy v. Doe in 2000, the court recognized some protection of online anonymity, finding the release of identity "should not be automatic upon the issuance of the statement of claim."

The court noted both safety and public policy grounds for protecting the privacy of Internet users. In this case, the plaintiff was able to show grounds for a defamation case and the request was granted.

In cases where child pornography or other serious crimes are alleged, the decision to release personal information is relatively straightforward. The right of the offender to privacy is outweighed by the societal interest in preventing this behaviour.

In civil actions or lesser criminal matters, courts appear inclined to afford some degree of anonymity to the user unless a prima facie case can be argued for disclosure. In doing so, courts appear to recognize anonymity as an important right if not abused.

Individuals may find it both helpful and rewarding to post messages and seek advice about a variety of personal topics without fear of having their identity connected with their writings.

The anonymity offered by the Internet does not, however, serve as a shield against accountability for civil or criminal wrongdoing.