Submitted by ROK
I feel compelled to post this as a means of helping users to get an understanding of where they legally stand with internet usage. I believe that everyone should know their rights and when it comes to the internet, rights are hazy in the minds of the public. Many who are connected to the internet browse with much fear of viruses and other threats, especially theft of their identity; we hear the horror stories of identity theft and wish it not to be visited upon us.
It is important to note that when you start a blog or use any virtual platform, you agree to the terms of service of the provider. The action of BFP to post a defamatory article exceeded professional boundaries and breached the WordPress terms to which it had agreed. This defamatory exposition followed a long period of time where bloggers using BU were harassed, threatened and bullied to stop commenting on BU. It is a very important point because all along, BFP have been insinuating that BU commenters are without quality and that the BFP blog is superior. These are myths which must be debunked because from the WordPress policy on freedom of speech, a blog thread will only be removed if it contravenes WordPress’ Terms of Service and a blog thread was removed from BFP by WordPress.
It means that BFP breached the Terms of Service of WordPress.com and that WordPress took action against them based on the complaint of a private citizen. The next step for a private citizen who has been so harmed is to apply to the court for an order of pre-action disclosure to aid in bringing an action against the perpetrator.
I have only recently seen a copy of the Judgement in the Google case and after reading it, my conclusion is that this ruling is very relevant to us and brings the “virtual” internet environment in touch with the reality of modern day life, in such a way that there is no erosion of established rights and freedoms.
It seems obvious too that the USA is miles ahead of us down here struggling with these issues. This is obviously not the first such USA Court ruling as precedents are cited. Further, it is interesting to note how the legal principles have been transposed to the virtual environment, to make it a certainty that any citizen whose rights are infringed by an anonymous person on the internet has a guarantee from the court that it will force disclosure of the identity of the transgressor. Barbados did pass an act dealing with the use of the computer and digital transactions but I am unable to put my hands on it right now.
However, there can be no debate that the computer is an extension of the person and the internet is an extension of our environment where everything that happens in public is or can be at the fingertips of each user; transcending time lapses and distances between locations.
Of interest, here is the Court’s take on internet usage:
The court also rejects the Anonymous Blogger’s argument that this court should find as a matter of law that Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions.
To the contrary, as one court in Virginia has articulated: “In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.”
Anonymity has always been a bother to me. When I walk down Broad Street I am not anonymous so why when I go out into the “virtual” world I must be anonymous to the point where I am a shadow or a phantom? Hence, what the court has done is reinforced the principle that “transgressors” cannot do wrong and get away with it. Conversely, the court also guarantees that if you have not done a wrong, your anonymity will be protected.
In the Google case, for example, the test employed here was to determine if a wrong was committed. Google contended that no wrong was committed. The Judgment states: “In opposing (the) petitioner’s application, the Anonymous Blogger contends that (the) petitioner is not entitled to pre-action discovery because she cannot demonstrate a meritorious claim for defamation.”
Similarities lie in the two cases because on all points of law, BFP had “prima facie” defamed. There was/is nothing to contend. The defamation came by saying that an identifiable citizen and public personality was “protecting” (definitively) criminal activity; an accusation that is capable of being either proved or disproved.
The second element of the BFP case was malice because the BFP author admitted that the information could be confirmed on the internet and failed to give due consideration to the fact that it was out of the jurisdiction of Barbados and hence there could be no withholding of information from the Barbados Police.
Note that the courts proclaimed that abusers must be made to pay for “their transgressions”. Society cannot tolerate such abuse with impunity because it would wreak havoc on the society and it ought not to be inflicted on the society. However, without strong evidence that a wrong has been perpetrated, anonymity is protected. In the case of BFP there is a strong case that defamation was perpetrated; based on a statement that can be proven false and evidence that the conclusion is outrageous and could not be construed as fair comment. The Judge had this to say about such an eventuality under the term “Pre-Action Disclosure”:
The law in New York governing pre-action discovery is well settled. CPLR 3 102(c) requires a court order for pre-action disclosure to aid in bringing an action or to preserve information. See Matter of Uddin v. New York Citv Transit Authority, 27 AD3d 265,266 (1st Dept 2006). When a party seeks pre-action disclosure to secure additional information necessary to frame a complaint or to identify the proper defendant with respect to a known cause of action, “courts traditionally require a strong showing that a cause of action exists.” Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 31025 at 92. “‘A petition for pre-action discovery should only be granted when the petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.”’ Matter Uddin v. New York Citv Transit Authority, supra at 266 (quoting Holzman v. Manhattan & Bronx Surface Transit Operating Authoritv, 271 AD2d 346, 347 [1st Dept 2000]); accord Matter of Peters v. Southeby’s Inc., 34 AD3d 29, 34 (1st Dept 2006), lv app den 8 NY3d 809 (2007); Matter of Bliss v. Jafin, 176 AD2d 106, 108 (1st Dept 1991); Matter of Stewart v. New York City Transit Authority, 112 AD2d 939 (2nd Dept 1985). “As a general rule, ‘the adequacy of merit rests within the sound discretion of the court. ’”
The courts recognise that the internet is a legitimate means of communications which has become commonplace and, to the extent that it is a public tool, it has to be for public benefit; as such the courts’ mandate as the judicial arm of the State is to ensure that it is safe for public use. The courts are therefore protecting blogs like Barbados Underground, which have objectives of freedom of speech; frank and free discussion at the national level on national issues and interests, but more important, has no hidden agenda to cause harm.
What this established is the boundaries where free speech and the anonymous use of the internet stops. The lessons learned are that you can blog your fingers off so long as you do not defame or commit other offences such as being a nuisance or persecuting people or any actionable offences which can be committed via the internet. Here is where the word “Transgressions” as used by the court is best understood because it does not stop at defamation; “Transgressions” is construed here to cover the spectrum of rights and responsibilities which we publicly enjoy.
Having said the above it is your right and your duty to ensure that none of these transgressions are inflicted upon you. By taking a stand, and for every transgression corrected, the more we will enjoy the rights given to us under our constitution and laws of Barbados. The downside of not standing up is that you will be bullied and intimidated as was experienced on BU.
A good guideline for blogging can be found in the wordpress.com policy on abuse and freedom of speech. Under abuse, wordpress states: In addition to spam and copyright issues, we will suspend blogs or blog posts for the following types of abuse:
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Personal threats and revealing of personal information
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Calls to violence
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Impersonation of a private person
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Accusations that can be proven wrong (for example wrongfully calling someone a convicted felon)
Under freedom of speech WordPress is even more instructive. It states: “The team behind WordPress.com strongly believes in freedom of speech. Our service is designed to let internet users freely express any ideas and opinions without us censoring or endorsing them. We think this has led to many great blogs being published on WordPress.com. However, you may also find the occasional blog that offends you. It might offend us as well, but while we are strict about shutting down blogs that violate our terms of service (no spam, personal threats, incitement of violence, etc), we will not shut down blogs because they are offensive. We think the right response to bad or offensive ideas is to speak out against them, not to censor them.”
In this regard, Barbados Underground should rise to the occasion and hold itself up as the example for all to see and follow because it has stuck within the boundaries of the terms of service of WordPress. Obviously, contributors, without any idea of the law or terms of service were able to gauge what was reasonable and acceptable.
As for the operators of blogs like David who may feel that they may be the target of a law suit in the event that an anonymous blogger defames somebody. If we take the cue from Google, David’s only legal duty is to release the name of the offender so long as it can be established that an actionable offence has been committed. As a matter of fact, there is nothing wrong with BU adopting a policy to disclose in such circumstances because we cannot be seen as harbouring wrongdoers. To reinforce what I said earlier, it must be established that an “actionable wrong” was committed before an identity is released.
The courts are certainly championing the cause of freedom of speech and the protection of individual rights. Furthermore, a lot more is recognised and settled in law than we realise and we should seek to familiarise ourselves or be taken advantage of by those who would seek to abuse.
The blogmaster invites you to join and add value to the discussion.