Friday, April 29, 2005

Online Anonymity - edition

Two interesting articles in the Irish Times today (subscription only) discuss the implications of, which allows students to give anonymous ratings and comments on their teachers. Needless to say, teachers aren't happy with comments such as "Couldn't teach her way out of a brown paper bag" and "Poor guy couldn't teach. Had it all in his head but just couldn't relate it to the students."

John Downes reports that the Joint Managerial Body (representing Irish secondary schools) has sought legal advice with a view to shutting down the service, only to be told that as the site is US based there is little that can be done. He also reports that the JMB has raised the issue with the Data Protection Commissioner, who has "indicated that the site is outside of [his] jurisdiction".

In the Business supplement, Fergal Crehan addresses the libel issues raised by the site, and also discusses the question of whether posters to the site could be identified (Article also available here) :
Contrary to widespread belief, the internet does not afford absolute anonymity, and Operation Amethyst, the Garda child pornography investigation, has shown that there is an electronic trail which can be followed from a web server back to an individual computer.

In theory, therefore, a person posting content on a website can be identified via their internet service provider (ISP). ISPs are prevented both by data protection laws and their own privacy policies from giving out the details of their subscribers without their consent, but English courts have made orders in defamation cases compelling them to do so. In 2001, the business website was compelled to hand over details of a pseudonymous poster who made defamatory statements regarding the company Totalise on the Motley Fool site. It was later held on appeal that the Motley Fool was not to be responsible for Totalise's costs for this application, thus avoiding the dilemma where a website has a choice between breaking data protection regulations and its own privacy policy where it hands over information voluntarily, and court costs where it does so only after a court order is granted.

Ratemyteachers states on its site that it complies with all court orders and subpoenas, but is it possible for an Irish teacher to get such a court order? If the principle established in the Motley Fool case is followed in Ireland, then the answer may be yes.

Whether Rate My Teachers would comply with an Irish rather than a US court order is unknown, and although there is provision for such an order to be enforced by a US court, the cost of such enforcement would seem to be prohibitive.

The Motley Fool ruling also suggested that in the interests of fair procedure, the person who is to be "unmasked" should be contacted by the web host or ISP and given an opportunity to give reasons why he should not have his details passed on, thus allowing a court to take a more balanced view in deciding the issue. A court may decline to give such an order, for example, in "whistleblower" situations, where the anonymity of a poster is of great importance.
I have to quibble with Fergal on two points here though.

First, he repeats the popular misconception that ISPs are prevented by the Data Protection Act / their own privacy policies from disclosing subscribers' identities in this type of situation. As I've explained, this is an oversimplification. The Data Protection Act permits voluntary disclosure to protect the "legitimate interests" of a third party to whom the data is disclosed, subject to a proportionality test. It might be that a particular ISP's privacy policy will prevent disclosure - but this is a difficult issue. Privacy policies may be regarded by the courts as mere policies - and won't necessarily have the status of contractual promises. In any event, many privacy policies will contain limitations which allow for disclosure to third parties in this type of situation.

Second, it's misleading to say that an Irish court order would be enforced by a US court. The US legal environment in relation to defamation is very different, since the First Amendment gives strong protection to speech in general and anonymous speech in particular. In several cases US courts have refused to enforce English libel decisions which they felt conflicted with the First Amendment's guarantee of freedom of speech. Consequently, to enforce any Irish order in the US, the plaintiff would have to show that the Irish decision was compatible with the First Amendment - which could be very difficult, given the differences between Irish and US libel laws.

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