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Happy SLAPPing

August 26, 2009

We have previously written about anonymity online here in relation to Norwich Pharmacal orders in the UK, it is a very topical subject, lying at the intersection of freedom of speech, and defamation law. Now recent events have brought a related activity, termed CyberSLAPPing, back into the limelight. If you hadn’t heard, to CyberSLAPP is to reveal the identity of an otherwise anonymous internet user through legal action. A real world analogy might run something like this: one day you, Joe, come across a poster stuck to the inside of a shop window in a busy street which reads ‘Joe Bloggs is a liar and a thief!’ Credit for this tremendously slanderous material, and some other notices nearby following a similar theme, is taken by a gentleman called JOESUX_2009. Understandably you worry about the effect which these posters are likely to have on your reputation, and take action at once. After you have asked the owners of the premises to take them down you decide that the culprit ought to be reprimanded, and ask the shopkeeper for JOESUX’s contact details, but he explains that he doesn’t have them, and you are at a loose end. Eventually you resort to legal action, and convince the courts to seize the shop CCTV footage, JOESUX is unmasked, and you sue him for defamation.

Turning back to cyberspace, this is achieved by obtaining a court order, forcing the organisation hosting defamatory material to surrender the IP address of the user that posted it. This, along with the date and time they posted the material, can then be used to reveal their identity. This is known as a CyberSLAPP. A recent incident in the US involved the outing of a blogger who had posted a variety of unpleasant things about a model online. The court found that there was a ‘strong showing that a cause of action exist[ed]’ and so ordered Google to give up information on the bloggers identity. This is only the most recent in a series of similar cases, and advocates of privacy and freedom of expression are concerned that, as the law develops, if the courts permit such activity to continue it will have a significant chilling effect on the exercise of free speech online.

The issue boils down to a difficult-to-strike balance between freedom of speech, privacy, and the importance of being able to hold someone accountable for defamation. The internet has enabled global dialogue on any and every issue, and is frequently hailed as an incredible tool for democracy. However, at the same time, while the impact that the web has on our lives grows so does the scope for harm resulting from its unchecked use. On the one hand, permitting anonymous use of the net can give unscrupulous users the freedom to unfairly tarnish reputations; but on the other, innocent parties may be intimidated by the threat of being outed. Without anonymity on the internet the voices of the oppressed might ring substantially quieter, the threat of being silenced perhaps severe enough to dissuade the most fervent activist from making their protest heard.

Whichever side of the debate you are on, if this class of legal action becomes more widespread you would be wise to think before you post. Your anonymity is not necessarily as safe as you might think. Are you prepared to stand up and account for your statement?