Defamation and the Net – beware anonymous defamatory comments…

By Legal Eagle

The Montreal Gazette reports that ?mainstream media outlets are increasingly cracking down on anonymous commenters on their site:

?This month, Thomson Reuters, one of the largest media companies in the world, announced it would no longer allow anonymous comments on its website, citing the comments’ “repetition, taste, legal risk or political bias”.

The shift away from creating an online community, once the focus of media companies desperate to remain relevant in the digital age, has been echoed by CBC, New York Times, Washington Post, and many others who have all, in the past year, announced they would review the practice of unfettered, unidentified commentary online.

The case against anonymous online comments has been highlighted by news this week that a Toronto police officer has filed a lawsuit asking Google to reveal the identity of YouTube users who mocked his actions, which were captured on camera during a G2o summit protest this summer.

Const. Adam Josephs was filmed during the Toronto protests telling a young woman that she would be arrested for assault if she continued blowing bubbles in his face.

Nicknamed “Officer Bubbles”, clips of Josephs’ confrontation spawned plenty of comments directed at him, including comics created by a YouTube user, that the officer claims are defamatory, according to his statement of claim.

“From our client’s perspective, he was performing his duty as a police officer in what was an extremely volatile time at the summit,” said Josephs’ lawyer, James Zibarras.

While he said that Josephs’ actions at the summit can be subject to criticism, “that reaction had this massive backlash which we say is disproportionate and incommensurate to what happened, and started getting to the point where it included threats.”

The suit seeks the identity of YouTube user ThePMOCanada — as well as those of 24 other commenters who Josephs contends defamed him — and $1.2 million in damages.

The videos have since taken down. The videos drew comments both threatening and insulting to the officer.

Meanwhile, on Friday, an American woman had success in New York in a similar matter, as Switched reports:

A few months ago, former actress, model and Columbia graduate Carla Franklin took legal action against a mysterious cyberbully who posted defamatory comments about her on YouTube. At the time, Franklin said she had a pretty good idea of who the crude commenter might be, but her lawyers decided to file a court petition for Google to formally reveal his identity. The petition, which was initially filed in August, has now been confirmed by a Manhattan judge, meaning that Google must unmask the cyberbully within the next 15 days.

In the court filing, Franklin’s lawyer, David Fish, asserted that the posted comments “were made with the intention to harm Ms. Franklin’s reputation and interfere with her relationships, employment and livelihood.” Franklin, who graduated last year with an MBA from Columbia Business School, is now working as a business consultant. While at Columbia, she filmed a series of short clips for the university, in which she offered guidance and advice to other students. One such video was subsequently uploaded to YouTube, where a rogue user posted inexplicably obscene comments — including one that called Franklin a “whore.”

Once the prosecution identifies the true identity of the YouTube user, Fish says, Franklin will slap him with a lawsuit for “personal humiliation, mental anguish and damage to her reputation.” Perhaps more important than the identity of the user, however, is the legal precedent that the judge’s decision could set.

It’s interesting to see how these cases are banking up. I posted on the case of Liskula Cohen last year, a model who successfully sued to find the identity of a blogger who called her “NYC skank”. Google duly provided the IP address, and was then slapped with a lawsuit by the blogger, who alleged breach of privacy.

There’s a few comments to be made about these cases. First, there’s something about online anonymity which seems to unleash something in some people. Behind the mask of anonymity, they say terrible things which they’d never say if they had to put their own names to it. Personally, I think this is very dangerous. Although I was a pseudonymous blogger for years, I always behaved as though, one day, I’d have to put my name to my words. But there’s also something about the Net – you don’t have to look at the person while you say things, so it’s much easier to say something nasty. Another rule of thumb for me: if I couldn’t say it to someone’s face, I shouldn’t say it online. But of course, as someone who was pseudonymous for four years, I do think there is a place for anonymity on the Net in some situations, and I’ve written about this in relation to the unmasking of the pseudonymous blogger, “NightJack”. Just as anonymity frees some people to say very nasty things, it frees some other people to have very interesting, honest discussions which they wouldn’t otherwise have, because their employers would make them follow the “party line”. And in some countries, anonymity may be a necessity, as a refusal to follow the party line can have disastrous consequences.

Secondly, anyone who brings actions such as these must beware the “Streisand effect“: that is, where the act of bringing legal proceedings brings far more publicity than the original publication. (The term was coined after Barbra Streisand unsuccessfully attempted to sue photographers for US$50M in an attempt to have an aerial photograph of her mansion removed from publicly available collection of 12,000 California coastline photographs, citing privacy concerns. As a result, public interest in the picture increased substantially and it became popular on the Internet, with more than 420,000 people visiting the site over the next month.) As I said about the Liskula Cohen case, the difficulty is that typically, a plaintiff is trying to achieve a number of different things. Plaintiffs in these cases are trying to find out who was behind the defamatory comments (and thus far, it seems that they are likely to succeed on that). They are trying to punish the person who was behind the comments (and it looks like they are likely to succeed on that). Finally, they are trying to protect their reputation, but by suing, they may give a far greater prominence to the defamatory comments than would otherwise be the case. I doubt I’d ever have heard of these people otherwise. It’s a hard choice with this kind of a case.

(Hat tip for Josephs’ story to @LawAndLit)

15 Comments

  1. Posted October 19, 2010 at 6:27 am | Permalink

    I think there has to be an honest realisation that if you want to be a tosser online, your internet handle (of whatever sort, anonymous or pseudonymous) will not protect you. This goes both ways. If someone has a consistent online identity that can be linked (by means of proof) to a single person, I have no doubt that that individual could be defamed by other people.

    The law is not magicked away by technology. Sure, as Windeyer J pointed out in Mount Isa Mines v Pusey, there is no doubt that very often the law limps behind technology. Eventually, however, it catches up.

  2. desipis
    Posted October 19, 2010 at 7:20 am | Permalink

    SL,

    There are technological approaches to ensure practical anonymity and hence freedom from the law in this regard. However like many other technological issues most people don’t understand things sufficiently, and the internet does not provide such anonymity by default.

  3. kvd
    Posted October 19, 2010 at 7:41 am | Permalink

    SL the other day on this blog you might remember my surprise that a comment was edited after being publicly posted. The comment and the edit were completely innocent, and the result very helpful to the reading of that poster’s comment but it left me wondering how, in a practical or legal sense, any defamatory comment which slipped through could be proceeded against. Could not the poster simply state that his comment had been subject to edit?

    I’m aware of sooning and disemvowelling etc., but I had previously assumed that sort of edit happened before the comment was publicly on view. Also with comment deletions – with which I fullly agree.

    Anyway, an honest question, seeking clarification.

  4. desipis
    Posted October 19, 2010 at 7:51 am | Permalink

    kvd,

    I thought the publisher of the material would be primarily responsible and only able to pass on the responsibility by demonstrating the content was not produced directly by them and that they were not otherwise responsible for it. This would follow presumably follow a path of Web Host -> Blog Owner -> Comment Writer; note that YouTube was one of the defendants on the Officer Bubbles suit.

  5. Posted October 19, 2010 at 7:54 am | Permalink

    Before your very first comment appears on the blog, it goes into automatic moderation. This gives us the chance to ascertain if the email address is genuine and to see if the commenter is coherent.

    This process isn’t bullet-proof, of course — sometimes people are perfectly civil commenters to begin with but then become rude over time (this has happened to us a few times). Most of the time, however, first impressions turn out to be accurate ones.

    If we didn’t have automatic moderation, the whole blog would simply be overwhelmed with spam. Basically, we receive a piece of spam for every legitimate comment, and having written for a much bigger blog than this one (Catallaxy) and talked to LP’s Mark Bahnisch, I know this mathematically direct relationship is maintained regardless of the size of the blog. LP and Catallaxy get absolute shedloads of spam.

    Sometimes the spammers are canny, too, and actually go as far to post legitimate comments (containing links) and register gravatars (the little images some of us have beside our names). These comments tend to contain links to a spam site (anything from pr0n to poker to car insurance), which is why if you include more than two links in your comment, it will also be automoderated. We try to let our regulars out of the spammer as soon as we can, but there can be a delay if one of us is away/asleep/working etc.

    Hope that all makes sense, it’s my bedtime over here, only the cough is keeping me awake!

  6. desipis
    Posted October 19, 2010 at 8:38 am | Permalink

    Looking through the claims I’m struggling to find anything that I wouldn’t consider clearly fair comment. Police officer conduct is pretty clearly a public issue, and the vast majority of the comments (and from my point of view the description of the cartoon) are clearly just opinions on the evidenced conduct of the officer involved. I don’t see how anyone could reasonably see a YouTube comment saying “fuck officer bubbles” in any way be considered to “lower the esteem of the subject in the minds of ordinary members of the public”.

    There are, however, a few comments that seem to cross the line into inferencing other behaviour, such as corruption or other illegal/unethical acts not related to the incident in the video. I think it’ll be a challenge for the court if it does decide that any of the claims are defamatory to distinguish between damage caused by the wide publicity of the original video and damage caused by the YouTube comments.

  7. TerjeP
    Posted October 19, 2010 at 9:37 am | Permalink

    Behind the mask of anonymity, they say terrible things which they’d never say if they had to put their own names to it.

    Some people are not bothered either way. Making rather rude tweets about Tony Abbott seems to be something several journalists have been prepared to do under their own name. Such people are tweets.

  8. kvd
    Posted October 19, 2010 at 10:09 am | Permalink

    Those old bloggers Hamilton, Jay and Madison used pseudonymity quite well, and for decent purposes. But then, I guess they had handwritten originals to protect them from accidental or wayward edit.

    Thanks for replies.

  9. PAUL WALTER
    Posted October 19, 2010 at 11:25 am | Permalink

    Ha. Moderators I’ve talked to reckon, if you think some of the stuff published is rough, have a look at what’s in the bin. I was thinking, I initially used my own name rather than the usual pseudonym by accident but became used to the idea, particularly after others used the cover of anonymity for adhominems, abuse, misrepresentation etc under the cloak of that anonymity. I like my name there, am accountable for, “own” my own comments, good or bad.

    Liked the Streisand story- even the rich have their preoccupations. I agree there is a lot of cowardice and sockpuppetry at some sites, at worst organised derails of threads on touchy issues by activists of different colours. The blogosphere can be a rough place for more sensitive souls; if you want to play in some of these sandpits you grow a thick skin quick or perish, so to speak. Moderators elsewhere have told me anonymity is a necessity, given the whistelblowing aspect and the likelihood of persecution of some people, some with “profiles”, by employers or others on the net, for adopting certain viewpoints.

  10. moggs
    Posted October 21, 2010 at 11:54 am | Permalink

    To each and every negative reaction… there is a positive one.

    While anonymity can be used in a negative context, it can also offer positives – such as the freedom to express ideas without prejudice.

    For example certain persons may offer an opinion which is valid and rational but which may be disregarded based on their age, gender, religious or political beliefs. Used in this way anonymity gives voice and the right to be heard to those who may otherwise lose their voice and right to express their opinion (in countries where such rights are legal rights). The idea/opinion/thought or comment can then be judged based on it’s merit/appeal.

    In some cases – it is contextually appropriate to moderate content (to avoid having spam or hate speech, etc appear on a website) – or to require users to sign in and/or identify themselves.

    I think it would be a sad day for privacy and freedom of expression to lose the right to anonymity all together. I am not sure how the balance will be managed – or even if it can be managed.

    I’m following the debate with interest.

  11. WB
    Posted October 21, 2010 at 4:13 pm | Permalink

    Great post.

  12. Posted October 22, 2010 at 1:40 am | Permalink

    Cheers, WB and moggs.

  13. Posted June 23, 2011 at 11:37 pm | Permalink

    Anonymous online speech can be used as a weapon or a shield.

3 Trackbacks

  1. […] This post was mentioned on Twitter by John Hacking, Legal Eagle. Legal Eagle said: Defamation and the Net – beware anonymous defamatory comments…: The Montreal Gazette reports that mainstream medi… http://bit.ly/anB69d […]

  2. By World Spinner on October 19, 2010 at 5:47 pm

    Skepticlawyer » Defamation and the Net – beware anonymous ……

    Here at World Spinner we are debating the same thing……

  3. By Skepticlawyer » The Streisand Effect on January 17, 2012 at 8:03 am

    […] “Officer Bubbles”: a Toronto police officer sued YouTube in an effort to get it to reveal the identity of anonymous online users who had abused him. The police officer was filmed during protests in Toronto telling a young female protestor that she would be arrested for assault if she continued blowing bubbles in his face. This led to him being nicknamed “Officer Bubbles”, and clips of the confrontation drew unpleasant and defamatory comments about him. In addition, an anonymous person created a series of derisory cartoons featuring Officer Bubbles as the chief character. […]

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