Accountability for the Anonymous

Accountability for the Anonymous

By Grace Given, SS Law and German, Niamh Robertson, SS Law and German, & Emily Barry, SS Law and German

Introduction

In late 2019, then Minister for Justice Charlie Flanagan pledged to present proposals for the reform of Ireland’s defamation laws by spring 2020. At present, the main legislation regulating the cybersphere is the Defamation Act 2009. While a 10-year period between Act and reform is a comparatively short period of time, in the context of the dynamic nature of the internet, reform is drastically needed. Online publishing via sites such as Facebook, Instagram, and LinkedIn has never been easier, faster, or more accessible and, as such, the possibility of defamation has never been more likely.

Speaking at a symposium on the topic, Minister Flanagan described Ireland’s defamation laws as essentially seeking to balance three different rights - the right to freedom of expression, the right to protection of good name and reputation, and the right of access to justice. The intricacies of this balancing act are particularly difficult when it comes to anonymous online defamation.

Defamation Act 2009

The tort of defamation as provided for by Section 6 of the 2009 Act, performs an extremely important function in vindicating an individual’s right to their good name and reputation by holding people accountable for false statements that “tend to injure a person’s reputation in the eyes of reasonable members of society.” However, it must also balance this right with the individual’s integral right to freedom of expression. The Act, in Section 6(2), provides for defamation “by any means,” which includes online defamation. This extends to comments and posts on social media platforms, such as Instagram and YouTube, as well as to group messages on WhatsApp or communications by email. The unique nature of defamatory comments made online is that they can instantly become viral, spreading like wildfire and causing severe reputational damage.

Online Anonymity

Anonymous posting online poses a particular challenge for defamation law. Although it was possible to publish opinions or comments anonymously or under a pseudonym before the advent of the internet, such statements were different in that they were usually published in a magazine or newspaper. Therefore, while the author remained anonymous, it was possible for a claimant to seek damages by turning to the traditional publisher. In other words, victims of defamation had a means by which to vindicate their right to a good name.

However, with the rise of online media, and particularly the use of online platforms and intermediaries who often play a passive, rather than active role in the dissemination of users’ opinions, such an option is no longer available for claimants. The issue of anonymous posts online is further complicated by the difficulty of identifying such users. It is rare that, during the publication of online communications, any form of real identity verification will be required; online communications generally rely on the self-identification of users. While this makes it easier for those who wish to post anonymously, it also provides a considerable challenge for those who wish to identify a tortfeasor.

Although such a task is possible, it is generally both costly and time consuming. If a user is determined to remain anonymous, it is possible for them to do so through the use of anonymous proxy servers. Using an IP address to establish the identity of a user is only helpful to a certain extent; IP addresses are linked to the source, but where a source (e.g., a computer or a smartphone) is used by numerous people, then it is impossible to know by which person the material was posted. Another obstacle to overcome is whether the Internet Service Provider (ISP) will be willing to share such information, as ISPs are generally under a contractual

obligation not to share personal information, as well as being subject to data protection laws. Therefore, when such information is sought after, a court order is generally required. The basis for such an order at common law was established in the case of Norwich Pharmacal Co v Commissioners of Customs and Excise [1974], in which “the House of Lords established that when a person is involved in or even unwittingly facilitates the tortious acts of others, he comes under a legal duty to assist the injured person by disclosing the identity of the wrongdoer.” However, where such an order is successfully sought, the costs involved fall on the applicant to be paid, thereby hindering the effectiveness of such a remedy in practice. Norwich Pharmacal Orders were recognised in Irish law in the case of Megaleasing UK Ltd v Barrett (No 2) [1993].

EU Directives also provide some clarification in this area with the EC (Directive 2000/31/EC) Regulations 2003 (the “E-Commerce Regulations”) protecting Intermediary Service Providers (ISPs) where they are acting as “mere conduits” for consumers to access content through their internet service, and where they are not aware of the defamatory nature of the content.

In light of these difficulties, it has become pertinent for updated legislative intervention. This has come in the form of the recent Defamation Bill.

The Social Media Platforms (Defamation Amendment) Bill

The Social Media Platforms (Defamation Amendment) Bill, which is currently before the Dáil, proposes to place the responsibility for the actions of such anonymous users onto social media companies. If passed, this Bill will require social media companies to reveal the identity of online anonymous tortfeasors and failure to do so will give rise to a defamation suit against the company itself. Secondly, Section 2 of the Bill provides for the insertion of Section 32 A into the Defamation Act 2009. This provides that a social media platform will be found guilty of an offence where they are unable to identify the person who published the original defamatory utterance. The section goes on to deem it irrelevant whether the person had supplied false information regarding their identity to the social media platform or whether the social media platform has any process in place for verifying users’ identity.

This serves both a short and long term purpose. In the short term, those seeking damages for defamatory statements have access to redress even when the tortfeasor is anonymous and the social media company is unable or unwilling to provide the identities of those posting defamatory statements. In the long term this should serve a wider social policy purpose, encouraging social media companies to monitor online defamation more scrupulously and oblige them to maintain a degree of accountability in terms of how they run their platforms.

Criticisms of the Bill

A key question in respect of this Bill is whether it strikes a proportionate balance between the right to free speech protected in Article 40.6.1.i of the Constitution of Ireland and the right to protect one’s reputation from false statements that may injure their good name within society which is guaranteed in Article 10 of the European Convention on Human Rights. The Bill’s critics may contend that this is an apt example of “the freedom of one individual beginning where the freedom of the next individual ends.” While such a position might be regarded as overly-sceptical in the case of restrictions to freedom of speech, it is arguable that one can never be sceptical enough. However, a line must be drawn between freedom of expression and spreading falsities. As the Bill does not pose additional restrictions on speech outside of those that already exist, it does not necessarily represent an inordinate interference with freedom of speech. It does, however, increase accountability on the part of those who seek to use anonymous accounts as a shield against potential liability.

This Bill will ultimately result in companies, who did not defame anyone themselves, paying the price for defamatory statements published on their platforms. A company may argue that it does not have the same degree of oversight as comparable institutions, such as newspaper outlets, who edit and oversee their publications. It is contended that, whilst these are respectable arguments, ultimately in the case of anonymous defamation, to leave a claimant without a remedy is patently unacceptable.

This Bill essentially forces companies to improve their handling of account identification or pay the price as though they themselves had posted the defamatory statement.

Therefore, it is maintained that this strikes the appropriate balance between the rights at play.

Tackling the practical application of the Bill might prove challenging. Firstly, while Section 1 of the Bill defines a “privately operated social media platform” as referring to “any third party which is hosting a publicly available, interactive website which allows users to produce, post and interact through text, images, video and audio to inform, share, promote, collaborate or network,” it remains unclear whether this applies to all online intermediaries, including, for example, Google.

Secondly, Section 2 of the Bill provides for the insertion of Section 32 A into the Defamation Act 2009. This provides that a social media platform will be found guilty of an offence where they are unable to identify the person who published the original defamatory utterance. The section goes on to deem it irrelevant whether the person had supplied false information regarding their identity to the social media platform or whether the social media platform has any process in place for verifying users’ identity.

However, this places a great responsibility on social media platforms, as the social media platform must adequately identify the person, lest they themselves be held liable for the defamatory comments. Placing such a high expectation on social media platforms could lead to the introduction of real-name verification on these sites in order for such sites to avoid criminal liability. Such an approach to online comments was introduced in South Korea in 2009 but has since been relaxed due to the numerous issues arising. Firstly, some websites, including YouTube, simply suspended the use of some commenting and uploading functions in South Korea, so as to avoid the need to verify account users. This led to users accessing the website through the use of a VPN. Furthermore, since websites then became a haven of personal information, they became a target for large-scale hacking.

Conclusion

There currently exists a legal lacuna in the area of anonymous online defamation. The internet, by its very nature, poses myriad challenges in terms of regulation and modulation. The Social Media Platforms (Defamation Amendment) Bill serves as one way in which this gap could be bridged and anonymous posters could be held to account by those who have suffered as a result of their defamatory comments. The Bill, however, is not without its limitations and a number of valid questions have arisen in respect of its practical application. The rights-balancing aspect of this issue poses an additional challenge to lawmakers and the feasibility of the amendments, in the context of the ubiquitous nature of the internet, remains to be seen. What remains clear, however, is that reform, in some form, is drastically needed and perhaps the Bill is a step in the right direction.