In “The Outing of a Blogger: Social Transparency or Violation?” I started this short series on the outing of a popular Alaska personal blogger, Mudflats (aka AKMuckraker or AKM), unveiled by a state politician.
The question I want to tackle in this article is the issue of the legality of blogger anonymity and what protects bloggers and not. This is a huge topic, so I’m only going to scratch the surface.
In many countries, there are no laws protecting freedom of speech nor journalists or bloggers. There may be protections for journalists, but none for bloggers. In countries where you would expect there to be such laws…it’s amazing how few there are and how flexible those laws can be.
Does a blogger have the right to privacy and anonymity? What rights do others have to expose them and why?
Is It Legal to Out a Blogger?
The UK Guardian reported in 2007 on several cases since 2001 where judges ordered blog and website hosting services to disclose the names in defamation and libel suits.
The case, featuring the website owlstalk.co.uk, is the second within days to highlight the danger of assuming that the apparent cloak of anonymity gives users of internet forums and chatrooms carte blanche to say whatever they like.
…Exposing the identity of those who post damaging lies in cyberspace is a growth area for libel lawyers.
Dan Tench, of Olswang, the law firm representing Gentoo, said: “This case illustrates an increasingly important legal issue: proving who is responsible for the publication of anonymous material on the internet. This is likely to be a significant issue in defamation cases in the future.”
The article stated that while the courts ordered some websites and services to reveal the site owners, “abusive fans” were permitted to remain anonymous as, “Their right to maintain their anonymity and express themselves freely was outweighed by the directors’ entitlement to take action to protect their reputation…”
These decisions included the publishers of content as well as those who respond to the content via comments and forums. Discussions in chat rooms, instant messaging services, Twitter, and other online communications that are preserved and “discoverable” are also at risk of legal action if the content crosses the line. Unfortunately, that “line” is still being drawn in the sands of the Internet.
In 2007, Buzzblog reported on a local newspaper’s attempt to uncover a blogger highly critical of a local politician:
The Record’s editor, Peter Ellis, tells me that his paper was merely calling to account “a political group hiding behind the name of a fictitious person, which is what happened.”
Ellis stands by that decision, as he should, although he does regret using the video…
The article reported that the editor felt that the blogger was not acting on their own behalf as a person with an opinion published freely, but as a member of an organized political group blogging with the intention of defamation.
The reaction was similar to the firestorm around Mudflats. “Some in the blogosphere have reacted so vehemently in opposition to the newspaper’s attempted outing that you would think the Record had formed a posse and shot the lonely pamphleteer of yore.”
Buzzblog claimed they had the right to take action to expose the blogger.
They were correct. While there may be a long-held and cherished right to publish anonymously in this country, it isn’t any more absolute than other First Amendment rights and should never be confused with a right to remain anonymous. After all, there was never anything stopping the lonely pamphleteer’s neighbors from saying, “Hey, that looks a lot like farmer Ben’s handwriting.”
They say that because the blogger made himself a “person of public interest” that made him “fair game for being identified,” similar to someone who becomes a celebrity opening the door to paparazzi invasion of privacy.
In my world, there needs to be a better definition of “person of public interest” because anyone who blogs could meet that vague qualification. And what about the politician. Aren’t they a person of public interest, too?
Video Blogger Goes to Jail
In 2006, Machine-Gun-Keyboard reported on a video blogger jailed for refusing to reveal sources for video he captured during a anti-globalism protect in San Francisco in 2005. As a blogger and journalist, he believed he had a right to protect his sources. The grand jury found otherwise. When he refused to identify the protesters he filmed and turn over the video “on the basis of protection of confidentiality of his news sources,” he was sent to jail. The article explained:
There are no federal shield laws in the US protecting a journalist’s right to conceal sources, though California has a shield law. Most US courts will, on the basis of tradition, grant an exception to allow journalists and publishers to maintain the confidentiality of their sources. If the courts wish to press the point, journalists can be imprisoned, as was Judith Miller of the New York Times for her role in the leak of the identity of CIA agent Valerie Plame to the press. Wolf is being held in contempt on a federal grand jury investigation, so the California shield law does not apply. Also, there’s no specific legal definition of a “journalist” in the US, though any person who collects information for publication in the public interest is normally considered to be a journalist.
The video blogger, Josh Wolf, turned his blog into Freedomedia, now dedicated to filming and reporting on civil disobedience and protests. Held in jail for 226 days, considered as of then the longest imprisoned journalist in US history for failing to comply with a subpoena, he shares the stories of his jail time in his Prison Diaries and the details of the case in US v. Wolf. For his resistance and the media attention, he received the 2006 Society of Professional Journalists Freedom of Information Award as Journalist of the Year and the 2007 James Madison Award for Online Free Speech.
Wolf is covered by the laws in place to protect journalists, and not, but these don’t yet apply to bloggers, and that distinction is growing thinner every day.
Bloggers Win and Lose Their Day in Court
Model Liskula Cohen, long associated with Giorgio Armani and Versace products, sought a court order to force Google and Blogger.com to identify a blogger as part of a defamation suit and won, exposing the blogger.
An Israeli court ordered Google to reveal the identity of a blogger who accused a Shaarei Tikva commitee member and politician of illegal acts, which they complied with. TechDirt’s response to this issue sided on both sides, but also brought up the issue of the confusion over libel and defamation.
There’s nothing wrong with a court requiring a service provider to cough up identifying information on someone who has broken the law — but it gets into very tricky territory when it comes to things like libel. We recently covered a number of similar cases in the UK where the results were the same — but a case in the US had the judge determine that the anonymous speech was protected and the person shouldn’t be revealed. It seems likely that we’re only going to see more of these cases over time — and questions about jurisdiction are only going to make them more confusing. What if the blogger in this case actually resides in the US, for example?
In TechDirt’s article, “The Ongoing Battle Between Anonymity And Libel Online,” they added:
…libel is increasingly a funny sort of crime in this world where everyone’s a publisher and everyone has an opinion. Accusing someone of libel in court can often backfire, as it only calls that much more attention to the actions that led to the original claims. It seems that it’s often better to simply respond to the false claims with proof that they’re not true, and then leave people to make their own decisions.
In the issue of Mudflats being exposed by state senator Mike Doogan, the issue of legality and responsibility are summed up by The Wandering Mind:
So I guess this is what elected officials do in Alaska, run down vindictive personal vendettas against anyone who opposes them. How Boss Tweed of him. AKM has only ever posted personal opinion and facts. But it seems this is a bad thing to do, in Mike Doogan’s eyes. He didn’t sue for slander, or libel, or defamation of character, or anything else. No, this was just to try to hurt AKM because apparently that’s the kind of guy he is. Forget freedom of the press, forget freedom of expression. Many, if not most, of the bloggers I’ve read are anonymous, and for good reason. Apart from cyber-stalking, there is real-world stalking. Let’s hope Rep. Doogan is still above anything like that, but frankly any integrity he may have had is demolished in my eyes.
They also bring up a very important point. While Mike Doogan thinks he was acting in the best interests of his constituents by revealing the identity behind Mudflats, many supporters of Mudflats think that Mike Doogan might have broken some laws, though they haven’t found any yet. Many are investigating legal action possibilities, which could result in some core changes to the laws protecting anonymous bloggers and bloggers in general, if pursued.
What are the legal ramifications of outing someone? Is that an invasion of privacy? Defamation? Libel? The laws have long been in place to protect anonymous sources for journalists in some countries, but what about the anonymous blogger? What are their rights? What protections do they get under the laws?
In the next article about blogging anonymously and the consequences of being outed, I want to share with you the courage and determination many anonymous bloggers have for keeping their identity secret, and how they shared that courage with others, including Mudflats.