Yet it is an unfortunate fact that this service has been abused. Racist and homophobic comments have been discovered on these sites, among allegations of paedophilia and the beating of students. On commenting on FriendsReunited.co.uk, “one primary teacher told <that he was> appalled to have had a school governor ring to tell him he was being labelled a sex offender” (Guardian.co.uk.).
Such allegations obviously raise issues of slander. However laws concerning slander, when they are targeted at the service providers rather than the individuals making the posts, could be viewed as being essentially unfair when an anonymous posting system is used. To sue the ISP is certainly much the same as bringing Eircom to court over speech made against you over the phone. Unfortunately it is the subject with the ‘deepest pockets’ who is often targeted, rather than being those who are directly responsible.
In the USA, the law has come down on the side of the website. The First Amendment, guaranteeing Freedom of Speech, along with the Communications Decency Act insured that the case brought against TeacherReview.com was dropped. Specifically section 230 of the CDA, which insures that a service provider is not responsible for “information originating with a third party user of the service” (‘Zeran v. America Online’, as quoted in Cyber-Rights and Civil Liberties). That the First Amendment also protects Internet Defendants has been tested recently in the case of the National Bank of Mexico versus Narconews, when “the court <found> that Narconews is a media defendant and is entitled to heightened protection under the First Amendment” (Wired News).
The system in the UK is, however, quite different and more complex. Similar to Irish legislation, laws concerning defamation are far more rigid. In the case of Laurence Godfrey versus Demon Internet Ltd (1999), it became known how these laws were to apply to the Internet. Demon were held to be the publishers of the libellous posting made by a third party using their service against Godfrey. It was viewed that “every time one of the Defendants’ customers accesses <the site in question> and sees that posting defamatory of the Plaintiff there is a publication to that customer” (Cyber-Rights and Civil Liberties). Yet this was not viewed as being the main issue in the case, rather that Demon had been asked to remove the libellous posting and neglected to do so. While this might well be viewed as a fair ruling, the precedent it set for future rulings became a point of concern. If notice received was to be enough to place responsibility onto the service provider, then a fear emerged that it was “open to misuse especially by multi-national companies keen to silence any public criticism of their activities and products” (Cyber-Rights and Civil Liberties).
The ethical difficulty that emerges here, as mentioned above, lies in accountability. Demon were not directly responsible for postings made using their service. But as the system relies on anonymity, and Demon were viewed as being, in all probability, the wealthiest target, blame rested with them. The same logic could well be used against FreindsReunited.co.uk.
Accountability
Accountability is, perhaps, one of the foremost issues with online defamation; whether Demon Ltd. or FriendsReunited.co.uk are responsible for messages published using their services. The problem has grown out of a tradition of anonymity on the Internet. The original system was never designed with legal accountability as an issue, nor did the fringe groups who later used the technology desire it. It has functioned well for years as a self-regulated body. It is only now; that the user base is widening that some form of control is required.
One argument “advocates an increase in the legal liability of … administrators for their irresponsibility as the primary method by which to balance anonymity concerns with personal accountability. <It is proposed> to accomplish this by imposing liability on the … operator for constructive knowledge of the illegal acts of the … users, the creation of a record keeping regulation, and a safe harbour exemption for administrators who voluntarily reveal the identity of culpable users while acting in good faith” (Bileta.ac.uk. Mostyn, Michael M.). This would effectively place blame on the service providers unless they were willing to give up the identities of the individuals when requested.
Another solution is simply to consider any current legislation involving Free Speech, ‘search seizure’ processes, and any other relevant law as “fully applicable without regard to the technological method or medium through which information content is generated, stored, altered, transmitted, or controlled’”. (Bileta.ac.uk. Wacks, Raymond.). Ireland has already followed this line of logic: the Electronic Commerce Act 2000 states that “All provisions of existing defamation law shall apply to all electronic communications within the State”(Electronic Commerce Act).
Such proposed legislation may appear sensible and simple to implement. But it only serves to demonstrate the lack of knowledge often apparent on the part of the lawmakers. Legislation existing to tackle issues of free speech, copyright, and the like cannot simply be ‘cut and pasted’ onto the Internet. The issues of ownership and accountability are too complex. So far these issues have not emerged in Irish courts. The only 2 relevant cases, DPP versus Y and DPP versus Kenny, both had clear protagonists.
One concept that seems to appear repeatedly, in both legislation and self-regulation, is knowledge of the libellous content on the part of the service provider denoting responsibility. In the Godfrey/Demon case, in FriendsReunited.co.uk, and even in the Irish Prohibition of the Incitement of Hatred Act, it is knowledge of the content of the material that denotes responsibility. Thus FriendsReunited.co.uk’s Steve and Julie Pankhurst (the site’s owners) may have made an error in adding a ‘report abusive message’ button to the site. “Anyone spotting an offensive or nasty comment can then alert operators who will remove it” (Guardian.co.uk.). While it has yet to be thoroughly tested, this puts the onus of removing the offending message, and thereby responsibility for its publishing, onto the site’s managers.
This is not a problem that can easily be solved. The current use of technology makes it impossible to track a user who genuinely wishes to remain anonymous. While any use of the Internet can potentially be tracked to a specific phone line and if on a mobile connection: a geographical location, the use of Internet cafes and communication centres make it impossible to track actual individuals. (Though current bills in the USA are attempting to tackle this issue, as will be detailed later).
Yet this is only an issue in British legislation. Under current US law they cannot be accountable for the actions of a third party using their technology. But TeacherReview.com includes space for the colleges of several other nations. They are, as yet, unused, but potentially libellous content could well appear under Trinity College, Ireland, or Cambridge, England. What occurs if a British libel case is taken against an American site? And how is US legislation changing in response to the attacks on the World Trade Centre?
US and Irish Law in reference to possible International Legislation
It is obvious to anyone familiar with the medium that international legislation is required. The current restrictions on content set down by the Chinese government and its inability to enforce these restrictions, due to an international underground effort, make this need apparent. Yet the difficulty in laying down legislation on an international medium is obvious. There is a chasm of difference between the laws of the USA and Irish law.
The First Amendment in US law states “Congress shall make no law… abridging the freedom of speech” (White House Online).
The Irish Constitution notes, “The State shall endeavour to ensure that organs of public opinion… shall not be used to undermine public order or morality or the authority of the State. The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law” (Irish Constitution).
The US Constitution is perhaps a more realistic and modern approach to what is actually occurring. It allows for changes in social norms and practices to take place. Enshrining the concepts of its principles rather than the bodies that currently uphold them. The Irish legislation’s concentration on, for example, religious issues, does not take social dynamism into account.
The inclusion of the 1989 Irish Prohibition of Incitement to Hatred act (though it has had no successful convictions) is the type of flexible law that could limit the freedom of the US legislation from getting out of hand on an international level. There would have at least been laws to turn to when sites on Yahoo selling Nazi memorabilia to French customers became an issue for international legislation.
It also follows the same logic of knowledge of content denoting responsibility. For, while it is “an offence for a person <to>… be in possession of <relevant> material… with a view to it being …broadcast”, and also an offence to provide “the broadcasting service concerned”, “that he did not know… that the item concerned would involve the material to which the offence relates” or that “he was not aware of the content of the material” is considered a defence (quotes taken from Prohibition of the Incitement to Hatred Act).
That the Act concerns “hatred against a group… in the State or elsewhere” (Prohibition of the Incitement to Hatred Act) is noteworthy. While it can, of course, only be acted upon within Irish jurisdiction, it would not allow a site to reside here, while being targeted at a group in another nation.
Ultimately the issue of accountability online cannot be solved with the present technology or, it seems legislation. It is part of a larger issue concerning the monitoring of the Internet as a medium.
The Control and Monitoring of Free Speech Online
Control of free speech online is not only possible; it is becoming increasingly desired.
“On 16 April 1993 President Clinton announced ‘a new initiative that will bring the Federal government together with industry in a voluntary program to improve the security and privacy of telephone communications while meeting the legitimate needs of law enforcement’… The Clipper Chip… It permits the government to retain a ‘back door key’ in order to intercept messages from ‘gangsters, terrorists, and drug dealers’” (Bileta.ac.uk. Wacks, Raymond.). While this initiative was ultimately dropped, a similar Act has now been passed.
The USA Act has gained a following in the states, though many believe that it was pushed through as an ill-considered reaction to the September 11 attacks. The bill “could result in some of the most draconian surveillance legislation ever to hit the Internet” (MediaGuardian). Specifically sections detailing such subjects as “Wire-tapping orders, which allow authorities to record the online activities of individuals, will be easier to obtain than ever” (MediaGuardian), had given rise to concern.
Another part of this same initiative, The “FBI’s much feared Carnivore system, which involves agents setting up covert systems inside the operations of Internet service providers” (MediaGuardian), is also receiving a great deal of attention internationally.
While the content of messages online will not be recorded, the data concerning them will be, meaning that the origin and times of postings will be saved. While the appearance will be maintained, true anonymity would be lost.
Another facet of the US government’s current moves to monitor the Internet is ‘Magic Lantern’, which would “allow investigators to secretly install over the Internet powerful eavesdropping software that records every keystroke on a person’s computer” (The Washington Post).
A system such as this would certainly deal with issues of accountability online. There would be no doubt as to from where the messages on FriendsReunited.co.uk originated. Even without the ‘Magic Lantern’, the Carnivore system when used under the USA Act would achieve much the same objective. Similar legislation is currently being developed in Britain (MediaGuardian). But is this move toward an increasingly monitored Internet desirable?
“The first remailer was created in one day, from conception to finish. The original intention was to use it to encourage <anonymous> open discussion among victims of child abuse or AIDS. It quickly evolved into something much more.” (Bileta.ac.uk. Mostyn, Michael M.)
Anonymous online speech has allowed for open criticism by political dissidents in Singapore, employees to report illegal activities including health and safety issues, AIDS victims and similar to talk about their experiences without fear of persecution, and many other activities worthy of legal protection. This concentration on the content’s worth over the author’s background has pushed for a consideration of the text on its own merits, without attention being given to the ethnicity, age, gender, or class of the author.
Yet this anonymity could be preserved: the identity of the sender being invisible to all but the installed government hardware. It would only be when questions of defamation or national security emerge that the user might be identified by a court order.
In speaking of the imminent Bill in Britain, one of its foremost pundits, David Blunkett, stated that they are “determined to strike a balance between respecting our fundamental civil liberties and ensuring that they are not exploited” (MediaGuardian). This is certainly a praiseworthy objective, yet it remains to be seen how successfully they achieve it.
Conclusion
While I am far from believing that the current structure of law is enough to effectively govern the online community, I do think that free speech should be enshrined and protected at all costs, especially in a medium that allows for words to be heard on a global level.
An international coalition is required to lay down effective legislation. Such legislation must consider the virtues of continued anonymous speech, while also laying accountability for online crimes onto the perpetrator themselves rather than the service providers.
Defences on the grounds of political and religious speech should also be considered: in an effort to minimise the potentially destructive effect of such legislation on free speech.
‘Digital signatures’, smart cards, Carnivore, and the like will all provide ways in which anonymity from other users is protected online, while traceability is still possible for authorities. Extensions of Data Protection Acts would presumably monitor this access.
While this could efficiently solve the problems of site such as FriendsReunited.co.uk and TeacherReview.com, it leaves broader concerns. The problem in such solutions lies in their basic assumption that the authorities to which these powers are entrusted are themselves trusted by the user. The central issue in arguments concerning Internet accountability and anonymity lies with a growing distrust of government. Indymedia.org and other sites provide the means to freely criticise our political leaders. If this communication were under scrutiny by these very bodies, their use would certainly diminish.
Perhaps effective and popular legislation is impossible when the user desires protection from the lawmakers themselves.
List of works cited.
American Civil Liberties Union. “In Free Speech Victory, City College Teachers Agree to Dismiss Lawsuit against Critique Website”. 13 November 2001. <http://www.aclu.org/news/2000/n100300a.html>
Bileta.ac.uk. Mostyn, Michael M. “The Need for Regulating Anonymous Remailers”. 3 January 2002. <http://www.bileta.ac.uk/99papers/mostyn.html>
Bileta.ac.uk. Wacks, Raymond. “The Death of Online Privacy?”. 3 January 2002. <http://www.bileta.ac.uk/98papers/wacks.html>
Cyber-Rights and Civil Liberties. Akdeniz, Yaman. “Case Analysis of Laurence Godfrey v. Demon Internet Limited”. 5 December 2001. <http://www.cyber-rights.org/reports/demon.htm>
CNN. “Yahoo! Nazi auction ban welcomed”. 9 January 2002. <http://www.cnn.com/2001/WORLD/europe/01/03/net.hate/index.html>
Electronic Commerce Act, Section 23. 9 January 2002.
<http://www.bailii.org>
Guardian.co.uk. Mc Veigh, Tracy. “Teachers take an online caning from ex-pupils”. 12 November 2001. <http://www.guardian.co.uk/internews/story/0,7369,591987,00.html>
Irish Constitution. “Fundamental Rights”. 9 January 2002. <http://www.maths.tcd.ie/local/JUNK/Constitution/Articles40-44.html>
MediaGuardian.co.uk. Johnson, Bobbie. “Farewell Web Freedom”. 13 December 2001. <http://www.mediaguardian.co.uk/story/0,7558,578204,00.html>
Prohibition of the Incitement to Hatred Act. Irish Legislation. “Prohibition of the Incitement to Hatred Act” Sections 1, 3, and 4. 13 December 2001. <http://www.bailii.org>
The Washington Post. Bridis, Ted. “FBI is Building Magic Lantern”. 12 December 2001. <http://www.washingtonpost.com/wp-dyn?pagename=article&node=&contentId=A3371-2001Nov2>
White House Online. “Amendments to the Constitution”. 9 January 2002. <http://www.house.gov/Constitution/Amend.html>
Wired News. Anderson, Mark K. “Court: Online Scribes Protected”. 12 December 2001. <http://www.wired.com/news/print/0,1294,48996,00.html>
