Anonymity in the blogosphere a right, not a privilege

If the site is hosted in SA, the take down procedure provided for in the Electronic Communications Act may be used by submitting a notice to the service provider hosting the site.

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...careful here - in very simplistic terms:

Electronic Communications Act (ECA) - regulates the carriage of communications
Electronic Communications and Transactions Act (ECT Act) - regulates the content and legal effect of communications

take-down relates to content = ECT Act

Right

Hi Dominic,

[We should stop meeting like this!] ;-)

You are 100% correct - I made a slip up in the press release. Last year I warned that people will soon get confused between the names of the ECT Act and the EC Act and now it seems that I was the first victim!

I would like to chat to you about your opinion that providing a link to defamatory content carries potential liability for such content... would that not make all search engines liable for whatever defamation appears on the search engine...?

As I understand the law, you are only liable for defamation if you repeat the original defamatory statement. Mere referece thereto does not amount to repeating it. Or not?

Reference via a link may also be protected by the truth and public benefit justification. For example:

To state on a blog that X had sex with a hooker might be defamatory, BUT to report thereon by stating that X CLAIMS that X had sex with a hooker is not defamatory because it is true it is true that X claim it, althought the truth of the claim itself may be in dispute).

Your thoughts?

Regards and thanks for the active and friendly engagement on these issues.

The benefits of anonymity outweighs the drawbacks. Any good leader with a little bit of philosophical skill instead of rhetorical skills would do his level best to make this enshrined properly.

More resources on Internet freedoms including anonymity

Hallo Antowan,

Well said! Imagine how it will limit the free flow of ideas and opinions if we were all forced to use our real names... the simple fact is that people speak more freely when they can do so anonymously or when they fear retribution from family, friends, employers or the state (or the Independent Democrats for that matter).

Check out these good articles and justifications for the right to be anonymous:

http://www.cyberslapp.org/about/page.cfm?PageID=7

http://www.chillingeffects.org/johndoe/

http://www.eff.org/Privacy/Anonymity/

Recent news on online anonymity:

San Francisco - The Electronic Frontier Foundation (EFF) and the California First Amendment Coalition (CFAC) have asked a California appeals court to scrutinize a chemical company's attempt to strip the anonymity from a participant in an online message board.

The participant posted information that H.B. Fuller Co. claims could only have been obtained through a company "town hall meeting," in violation of an employee confidentiality agreement. However, the poster has submitted a declaration to the court swearing that he or she is not an employee and that the information posted on the message board could have been gleaned from any follower of Fuller's business practices.

A lower court ruled the message board poster should be identified to Fuller. In an amicus brief filed Wednesday, however, EFF and CFAC argue that the lower court undervalued the right to anonymity and set a dangerously low threshold for stripping Internet users of its protection.

"Liberal protection for the right to engage in anonymous communication – to speak, read, listen, and associate anonymously – is fundamental to a free society," said EFF Staff Attorney Corynne McSherry. "That is why courts must strike the appropriate balance between the competing interests of subpoenaing parties and the anonymous speakers they seek to unmask, recognizing that once an online user's anonymity and privacy have been eviscerated, they cannot be repaired."

EFF and CFAC urged the appeals court to adopt a test for this case and others that would protect the rights of Internet critics. That test should include notice to the anonymous speaker, an assessment of the merits of the legal claims and other alternatives for finding the source of harm, and careful consideration of the balance of harms.

For the full amicus brief in Fuller v. Doe:
http://www.eff.org/legal/cases/fuller_v_doe/fuller_v_doe_amicus.pdf

Regards,

Yet another reason to host overseas.

I will wade in here full blast and probably be way off target.

But I ask this: Are bloggers more anonymous and more protected than if they were to write to a newspaper? If yes to either, should we be fighting that our press is liberated more? Does the press need liberating or have they cowered under the pressure of the corporate world?

Essentially does the press (read editors) not fully exercise its freedom of speech? I may be behind the times but this is based somewhat on Bullard's attack on blogs. I missed out at the time.

The Internet is the only place free speech truly exists and its changing the world. Nice issue to pick up crbuys, thanks.

Free press

Hallo Milomak,

Yes, bloggers are more protected than newspapers... not because of the lawm but because of self sensorship and fear for liability on the side of newspaper publishers. E.g. no newspaper will publish an anonymous letter from a reader... they might agree to publish the letter under a nickname but will only do so if they know who the writer is.

However, newspepers rely on another form of anonymity - the right to keep their sourced anonymous. This right is so valuable that they will rarther go to jail than dislcose the identities of their anonymous informers. Some newspaper websites even invite anonymous news tips.

Consider the recent media reports regarding the anonymous disclosures by an ex-male prostitute of his "alleged" well known clients. The traditional media (printed newspapers and their websites) initially refrained from printing any names or the URL of the blog. In contrats the local blogosphere actively debated the matter and published links to the blog withour fear for potential liability. The newspapers also followed De Lilles line that the disclosures were defamatory and never considered that they might be true and that reporting thereon may be a matter of public benefit.

The fact that bloggers / discussion forums seem to have more free media rights than newspapers also result from the different formats. When a story is published in a newspaper no immediate reaction or comment is possible. However, when a story breaks on a blog or in a discussion forum, immediate response is possible to the same audience.

A nice summary of bloggers' rights are available at http://www.eff.org/bloggers/.

Regards,

crbuys said:

I would like to chat to you about your opinion that providing a link to defamatory content carries potential liability for such content... would that not make all search engines liable for whatever defamation appears on the search engine...?

As I understand the law, you are only liable for defamation if you repeat the original defamatory statement. Mere referece thereto does not amount to repeating it. Or not?

Reference via a link may also be protected by the truth and public benefit justification. For example:

To state on a blog that X had sex with a hooker might be defamatory, BUT to report thereon by stating that X CLAIMS that X had sex with a hooker is not defamatory because it is true it is true that X claim it, althought the truth of the claim itself may be in dispute).

Your thoughts?

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hey reinhardt

it is not a straightforward issue and, as usual, my view was a little mangled as reported. my advice to the m&g not to link to the story was rooted in the context of the debate around the Film & Publications Amendment Bill and the need for mainstream media to act responsibly in not giving more ammunition to those seeking to regulate them (i.e. not so much a liability issue as a strategic one).

on the potential liability issue and in the absence of local precedent i would still advocate a degree of caution. if, as you have noted, a particular case falls within an established defence to a defamation claim or is reported as an allegation that may be fine. But the ECT Act provisions with regard to incorporation by reference through linking to a public document would still make me a little wary of advising a client to publish a link (and again this is, to an extent, dependent on the risk appetite of that client)

search engines could be covered under chapter 11 of the ECT Act. Section 76 is interesting in the context we are discussing...

Information location tools

76.
A service provider is not liable for damages incurred by a person if the service provider refers or links users to a web page containing an infringing data message or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hyperlink, where the service provider—*
(a) does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of that person;
(b) is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent;
(c) does not receive a financial benefit directly attributable to the infringing activity; and
(d) removes, or disables access to, the reference or link to the data message or activity within a reasonable time after being informed that the data message or the activity relating to such data message, infringes the rights of a person.

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i also recall that there is some case law with regard to compounding the defamation by drawing attention to it (excuse the lack of links but a lack of time and a focus on the ECA as opposed to the ECT Act leave me a little deficient there

as regards anonymity - the framework for dealing with an anonymous blogger who oversteps the mark (i.e. does not use the right to anonymity with the attendant responsibility it demands) already exists imho

and it is ironic that, as a result of being lawyers and not being comfortable with being totally anonymous on this forum, neither of us takes full advantage of this right...

best regards

dominic

Mmmm

Hey Dominic,

You have a point regarding section 11(3) of the ECT Act - I never thought of that...

Regarding search engines, are they not only protected by section 76 if they are also ISPs? "A Service Provider is not liable...".

So to qualify for the limited liability the search engine must be operated by an ISP. E.g. the Mweb search engine would qualify but not the Aardvark search engine (because Telkom is not an ISPA member)...

If I interpret it right, it is just another example of how unconstitutional the ECT Act really is...

Yes, funny that we stick to our real names. I think the price for anonymity is less credibility.

Later,

Blog is cheap

Oddly enough, when the whole thing with De Lille and the ID broke, there was a LOT of blogging going on about it. Yet nobody seemed to know what it was really about, except defamation of Simon Grindrod.

So I did a quick search on Technorati, and thus discovered samaleprostitute.wordpress.com and the comments regarding Grindrod and others.

Personally, I think the blogger should be held responsible for what he did, but definitely not at the cost of anonymity for all bloggers. (He seems to have been running a blackmail racket, with many posts having a title with a prominent person's name, and the text simply saying that story will be uploaded within 72 hours)

Be that as it may, I decided to leave comments on the top 10 blog stories (according to amatomu) at the time, simply saying:

"I think this is what all the fuss is about: <link to simon grindrod post>"

All of these bloggers were ranting and raving about freedom of speech and how crazy De Lille is and how she would never get away with it etc etc.

Yet only one of the 10 published my comment...

crbuys said:

Hey Dominic,


Regarding search engines, are they not only protected by section 76 if they are also ISPs? "A Service Provider is not liable...".

So to qualify for the limited liability the search engine must be operated by an ISP. E.g. the Mweb search engine would qualify but not the Aardvark search engine (because Telkom is not an ISPA member)...

If I interpret it right, it is just another example of how unconstitutional the ECT Act really is...

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most of my problems with the ECT Act lie in the definitions and this is another example..

i.e. what is a "service provider" for the purposes of chapter 11 of the ECT Act

70.In this Chapter, "service provider" means any person providing information system services.

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"information system services" includes the provision of connections, the operation of facilities for information systems, the provision of access to information systems, the transmission or routing of data messages between or among points specified by a user and the processing and storage of data, at the individual request of the recipient of the service;

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what a mess.....there is probably an argument to be made that the search engine (which is not an ISP anyway) would, at the individual request of the recipient of the service, be "processing data"

and one would have to try and do this to avoid the completely illogical result which you raise regarding mweb's search engine vs aardvark

[and it pays to remember that afaik there is as yet not one single properly registered industry representative body in SA, although there have been some applications to the Minister]

@ henk - freedom of speech is hard work often requiring big balls, especially in the face of a huge amount of legal uncertainty; there have been a number of studies on the effect of take down notices on freedom of speech, usually with predictably limiting results...most ordinary folks will take down just about anything if threatened with a lawsuit

Thanks

Hi Dominic,

Thanks for an informative chat... shows that two lawyers can debate matters on this forum without getting personal and nasty!

Appreciated,