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Is this goodbye to the 'trolls'?
by freeman at 13:26 01/04/01 (Conference Papers)
The advent of internet news sites has brought a new and inclusive means of communication and exchange of information. However, our conference paper shows that that freedom of expression could also bring with it a sense of responsibility, and it brings another example of new technology being regulated by out-moded legislation. A recent legal ruling shows that the casualties could be the posters who use the discussion forum on news sites.
Dragnet’s Joe Friday was fond of reminding overzealous witnesses that all he wanted was “Just the facts”. So when headlines scream “End of the anonymous net” and “Forums [sic] face crackdown” , it is a relief to retreat to the dry, measured, tones of The All England Reporter and The Times Law Reports to enquire into what really happened in the matter of “Totalise plc v Motley Fool and Another”.

The judgment , given by Mr. Justice Robert Owen on February 19th but not published until 15th March , has excited some speculation as to how much of a landmark it is. Essentially, Totalise, modestly described as an Internet Service Provider , were seeking the real identity of the person , known as Zeddust , who made a series of what they considered prima facie libellous postings to two discussion boards.

The operators of the two financial websites , Motley Fool and Interactive Investor , use the attraction of unmoderated chat to let investors discuss companies outside the grip of corporate PR. They removed Zeddust’s postings , but refused to disclose his , or her , identity.

So the case was brought by Totalise simply to force the two sites to hand over the registration details. By relying on the journalists’ defence against being forced to disclose their sources , Section 10 of the Contempt of Court Act , it was no surprise that they lost the argument. As the judge pointed out , they took no responsibility for , and exercised no control over , the postings.

According to Alasdair Pepper , a senior partner at libel specialists Peter Carter-Ruck and Partners “reputation in this world is becoming more and more important”. What the case seems to represent is the arrival in the UK of a more pro-active attitude to reputation management by corporate business. The internet has made it so easy to publish that companies have to choose between ignoring this kind of attack and going to law. That in itself is not without pitfalls. “One of the problems is – do you give something credibility by even complaining about it?” adds Pepper.

In litigation-conscious America it is a no-brainer. Alicia Ault , writing in the latest edition of Wired , quotes the American Civil Liberties Union’s claim that there were more than 100 of these disclosure cases last year. The ACLU reckons they are used to shut critics up rather than win damages. However the anonymous posters still have rights of privacy. ISPs who willingly give up personal data without a court order have been sued. Aquacool 2000 won an out of court settlement from Yahoo for failing to notify him , or her , about a subpoena. Pepper reckons that if cases like this arrived in Britain “there may be a course of action for breach of contract ……..or possibly a breach of privacy under the Data Protection legislation”.

Totalise is not everyone’s idea of an ISP. The Leeds based group of companies has global ambitions. Their portfolio of e-businesses include Eurecar which imports cars , Flowers2send , an online florist operating out of Holland , Totalise Telecom offering least cost routing , and partnerships which provide mobile phones , ringtones (currently the hottest service in Premium Rate circles) financial services and health insurance . They have only been operating for a year and a half , floating on the Alternative Investment Market during the dot com boom. Unlike some opportunists who had schemes to recruit a quick customer base and then cash in , Totalise gave out real shares based on usage of their services. They consider themselves to be a kind of “mutual” company.

No rumour has yet surfaced as to what Zeddust was actually posting that proved so provoking to Totalise. The company was unwilling to elaborate. Certainly there is no PR benefit in an ISP forcing two website operators into court , when they ought to be standing together against encroachments on subscribers’ rights to anonymity and privacy.

Alasdair Pepper pointed out another irony. “The curious thing about the case is” he said “ had , for example , the posting not been a posting by a third party , but an article based on what that third party told them , then they would have been able to rely on Section 10”.

Online journals have always had both the same rights and responsibilities as print ones. If they fail to check facts or post malicious lies they can be sued. It is the unmoderated discussion board , that child of the internet , that could be the real loser from this judgment.

Websites and portals that continue to allow anonymous postings by registered users are in the worst situation. They cannot live up to the promise of anonymity given to their users. Companies declaring an intent to sue can force them , as innocent third parties , to disclose information , and always win , because the operators of the site maintain no editorial control of its content. Yet they have to resist and be taken to court because the anonymous poster may have rights under contract or data protection legislation.

One option is to operate the portal as a professional publishing enterprise , moderating all postings and using unpublished ones as source material for properly investigated stories by journalists. This might prove expensive. Another is to keep no registration details , but the onus would probably be on them to show this in court. A third option is to tell all users that their details will be passed on request to anyone who asks and that no anonymity is permitted. This could decimate the use of these message boards because their frank and often coarse banter could come back to haunt people. Many would consider it not worth the risk. How they adapt to this ruling will be interesting.

Publishers of newspapers and magazines have never dreamed of typesetting and printing anonymous contributions. Now , the new medium of the web has spawned a whole culture of chatrooms , newsgroups , message boards and other kinds of ad hoc virtual community where the cost to a host group of allowing anyone to both read and write messages is negligible. No sophisticated registration or payment system is required.

Since the internet land grab by corporations , this culture is looking more and more like an anomaly. The free side of the net was tolerated as long as those involved in the fee side were making money – or at least raising money with no trouble. Faced with cash burn , a missed IPO , or the share price in the basement how do those companies survive?

The answer , it seems , is by fiercely protecting the only thing they have left , their good name. “I think” Pepper ventured “ that companies and individuals will be willing to spend more time and money trying to protect their reputation , or enhance it , either through PR advisers or through the law”. Don’t say you haven’t been warned.

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freeman

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Is this goodbye to the 'trolls... freeman - 1/04
    Goodbye to "open" discussion f... Andy White - 8/04
       Yep... MadDog - 9/04
          Lounge Andy White - 13/04
    Suing for libel Tommy - 9/04
    Paranoia The Lone Gunman - 31/05
 
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