ANONYMITY IS UNPOPULAR. It always has been, but in recent months, the anonymous, cowardly internet troll has become society’s latest hate figure. The reasons are clear; recent outbreaks of ugly and hateful online abuse have been, to a large extent, the product of people unwilling to put their real names to their views.
However, anonymity is rarely absolute. Often, the internet itself provides the tools to identify an individual by context. For example, people writing under a pseudonym will often carelessly link to other web services, like Instagram or Spotify, or will post photos and other details about work and family, making their identity easily discoverable. In cases of teenage bullying, the bullies are usually known to the victim – that is exactly what makes the bullying so frightening. In the Erin Gallagher case, for example, the online bullying was an extension of what was happening in school.
Anonymity can also be removed by legal means. An order may be sought from the courts to unmask anonymous or pseudonymous persons on the internet. This is called a Norwich Pharmacal order, a remedy developed by the English courts in the 1970s to require an innocent third party to disclose information about a wrongdoer. These orders are typically made against hosts of internet platforms, requiring them to disclose IP number from which the abusive comments were made, and then against Internet Service Providers, requiring them to identify the subscriber linked to that IP number.
The Irish Examiner reported on the High Court this week involving Mr Jim Ferry, a Letterkenny man, who was granted an order against Facebook, requiring it to reveal the personal details of a user who created a fake account in his name. Facebook did not contest the application. This order demonstrates that online activity is not absolutely anonymous. But, on further consideration, it also highlights the difficulties with any requirement for use of real names online.
Mr Ferry is, he says, the subject of a conspiracy to defame him and his business, by accusing him of illegal dumping. The Facebook account seems to have posted, under Mr Ferry’s names, claims to have engaged in illegal dumping. Mr Ferry had the page removed. However, he wished to go further, and find out who had created the page. It is unclear from reports on what he based his application to the court, but its a good guess that he alleges libel.
However, The Independent reports that Mr Ferry is being prosecuted by Donegal County Council for illegal dumping. He may be innocent of all charges, and the law presumes him to be so, until proven guilty. But if he is convicted, then Facebook will have handed over the personal details of someone who has done nothing illegal, and said nothing untrue. Unlike other jurisdictions such as the United States, Irish law fails to ensure that users are notified of attempts to identify them and given an opportunity to oppose the application.
Consequently in most cases Irish users are dependent on the web platform or ISP or to make a case on their behalf. These companies however, have no commercial incentive to do so. Facebook don’t want to get involved in an argument about dumping. That’s why they didn’t oppose the application.
Anonymity, as I say, is unpopular. But unless there’s actual wrongdoing, anonymity is not inherently bad, and in many cases serves a socially useful purpose. Throughout history, from Johnathan Swift to Phoenix Magazine, authors have found it necessary or convenient to adopt alternative names for their public statements. In 2010, anonymous blogging alerted us to problems within the Irish Red Cross which might never have come to light had the blogger not been able write under a pseudonym.
Indeed, where the current government is committed to the introduction of “whistleblower” protection legislation, any attack on the right to anonymity would seem to be a retrograde step. And for all the concern regarding anonymous bullying of children, it would surprise many to learn that Barnardos recommends to children, in its social media guidelines, that they never give out their real names while in chat rooms.
In 2005, the High Court held that “the right to privacy or confidentiality of identity must give way where there is prima facie evidence of wrongdoing”. This is impossible to argue with. But we need to clear about what “wrongdoing” is. Threats are a crime. All of the worst of the bile directed recently at Caroline Criado-Perez and others was criminal, and therefore forfeited the protection of anonymity (several men have now been arrested in connection with threats to Criado-Perez).
Abuse, where targeted and repeated, is also a crime. Incitement to hatred is a crime. Defamation, though not a crime, is legal wrongdoing. But crude jokes, personal insults and even the most tasteless and outrageous statements are words, not actions. Upsetting words, disgusting words, but at the end of the day, just words. Twitter, Facebook and other services are entitled to define their own terms of service how they wish, and to suspend accounts for breaching them. But that is a separate question from anonymity.
I have been writing things on the internet for almost 15 years, and it simply never occurred to me to use anything other than my real name. I never felt any need to. Certainly, I feel that if you are engaging in public debate, you should do so in a public way. But then, I’m lucky enough not to need the protection of anonymity.
Some are not so lucky, and we – and the courts – need to consider their rights before we rush to unmask them.
Fergal Crehan is a barrister practising in a variety of areas of the law. He has his own blog which you can view here.
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