MICHAEL GEIST
Thursday, October 19, 2000
The famous cartoon featuring a dog at a computer that reads "On the Internet, no one knows you're a dog" suggests that the Internet provides users with true anonymity. That sense of anonymity is often illusory, however, as surfing the Web or sending e-mail typically leaves behind an electronic trail that can be followed to identify the user.
Access to the electronic trail presents some complex legal issues. Companies or individuals that have been the target of on-line defamation from an anonymous source often ask the Internet service provider or Web site host to provide whatever data they possess that might assist in identifying the source. Most ISPs are reluctant to provide such information without a court order -- and rightly so, since they are concerned that providing subscriber information without some legal justification would constitute a betrayal of the subscriber's personal privacy.
Although legal applications to reveal anonymous on-line sources occur with surprising regularity -- reports suggest that sites such as Yahoo receive court orders daily -- few judges have provided guidance on how to balance the rights of the defamed party with those of the poster to remain anonymous.
That situation changed last month when an Ontario judge considered an application from Irwin Toy and its president George Irwin asking iPrimus Canada, an ISP, to reveal the identity of one of its subscribers. Rather than simply issuing the order, the judge released a carefully considered judgment that addresses the concerns of both plaintiffs and ISPs. Potentially left without adequate protection, however, are anonymous posters who as a result of the decision may not know what hit them in future cases.
At issue in this case was an allegedly defamatory e-mail sent to approximately 75 Irwin Toy employees. Irwin Toy traced the origin of the message to an Internet address used by an iPrimus subscriber. iPrimus refused to reveal the identity of the subscriber, but indicated that it would not oppose an application for a court order.
In considering Irwin Toy's application, the judge noted it is generally understood that subscriber information will not be disclosed. He added that some measure of privacy or confidentiality has a significant safety value and should be seen as good public policy.
However, the judge also found that Irwin Toy had succeeded in making a prima facie case of defamation. This means it presented enough evidence to take the case to trial. In making his ruling, the judge found that the company was entitled to the subscriber information.
He cautioned that disclosure of subscriber information should not occur simply because an application has been made to the court, but rather only where a prima facie case is presented with repect to the allegations.
Although this balance protects both ISPs (who only need to reveal subscriber information when presented with a valid court order) and plaintiffs (who will be able to obtain identifying information where a prima facie case is made), it may leave anonymous posters without sufficient legal notice protections. Cases may therefore proceed without their knowledge or participation.
When confronted with an application to reveal their identity, anonymous posters face a Catch-22 dilemma. If they appear in court to contest the application, they effectively reveal themselves. If they ignore the application, they face the prospect that a court will order disclosure of their identity.
What's more, anonymous posters are frequently not aware of the court proceedings. Since plaintiffs don't know who is behind the postings, they are unable to serve court papers on the poster.
Striking an effective balance between the rights of anonymous posters and the rights of plaintiffs requires ensuring that posters receive adequate notice and are afforded an opportunity to contest the application while maintaining their anonymity.
This balance has been maintained on several occasions in the United States. For example, when confronted with allegations of defamation in an on-line chat room this past summer, a New Jersey judge ordered notices to be posted in the same chat rooms where the allegedly defamatory messages occurred. As a result, two of four posters retained counsel and contested the application.
Similarly, America Online's policy states that it will provide subscribers with notice of a court order before revealing identifying information, while Yahoo implemented a similar policy after it was hit with a lawsuit for its failure to provide notice to an anonymous poster.
While on-line anonymity provides security to speak freely without fear of repercussions, it can also encourage reckless activity among those who wrongly believe that their speech carries no consequences. Achieving a fair legal balance that addresses the needs of all parties is not easy. A starting point is an approach that provides poster and plaintiff alike with adequate notice as well as legal protections that place the onus on the plaintiff to prove its case.
Michael Geist is a law professor at the University of Ottawa Law School, director of e-commerce law at the law firm Goodman Phillips & Vineberg, and the author of Internet Law in Canada (Captus). He can be reached through his Web site, http://www.lawbytes.com, or at mgeist@uottawa.ca.
