Tuesday, May 29, 2007
Ignore calls to regulate MXit and Blogs
About ten days ago, the leader of the independent democrats, Ms. Patricia De Lille, issued a statement calling on government to regulate MXIT and Internet blogging. Her call – carried in full on the ID.org.za website - was motivated by, amongst other things, recent revelations of pornographic images of young girls circulating on MXIT.
MXIT is incidentally, a cheap messaging system on cellphones used primarily by young people – I am far too old for it.
There have been several cases of under-age teenagers taking nude photos of themselves and then privately sending the digital pics to a special friend. Then for some unknown reason the friend distributes the images through a whole network of friends and assorted perverts.
Once a picture is out in the public domain – you can’t get it back – ask Paris Hilton.
This is unfortunate, yes, photos taken in unguarded moments can haunt you for a long time. My advice to you on this – if you don’t want naked pictures of yourself spattered all over the internet or on cell phone networks - do not take the pictures in the first place.
Distribution nowadays is just too easy –
But please don’t blame the network, or the phone system.
In the old days when pornographers distributed their wares through the postal service, nobody in their right minds thought of censoring private letters?
But perhaps what really sparked Ms. De Lille to call for regulation – especially of blogs – was a revelation a little closer to home.
Her statement on the ID web site said – and I quote: “We recently came across a blog with slanderous comments about a famous rugby player, a respected reverend in the church and a prominent entertainer.
‘This blog also included one of our senior politicians, Councillor Simon Grindrod. He reported this matter to the
The blog she is referring to – samaleprostitute.wordpress.com – is a trashy corner of the internet where a demented blogger describes himself as a heterosexual male who serviced gay males – including fifty minor celebrities – for a number of years.
The entries – mostly in Afrikaans are slanderous and should be taken down.
But not because the government should attempt to undertake the impossible and regulate the blogosphere; but rather because those entries surely violate every law of defamation of every country on this planet.
Reinardt Buys, a lawyer who specializes in Internet law, says to those who have been anonymously defamed on a blog - the first step is to inform the blog operator of the defamatory postings and request the removal thereof.
Buys says that if the site with the defamatory content is hosted in South Africa – the take down procedure provided for in the ECT act may be used to literally take down the defamatory content.
In other words someone who is defamed on the internet – does rightly have legal recourse – but let us ignore calls to regulate the tools that make the internet the fantastic medium it is.
For more on this issue, please go to the Cybersurf blog – which you will find at Cybersurf.blogspot dot com. One more time - Cybersurf.blogspot dot com.
Thanks for listening - and do join me again next week for more on the best of the web.
Date: 29 May 2007
PRESS RELEASE
FROM: BUYS INC. ATTORNEYS
TOPIC: BLOGS, DEFAMATION AND ANONYMITY
DATE: 28 MAY 2007
CONTACT: REINHARDT BUYS, (021) 461 7387, reinhardt@buys.co.za
EMBARGO: NONE
The media recently reported on comments by Independent Democrat (ID) leader, Patricia de Lille, regarding defamatory blogs and the use of MXit.
According to a statement on the ID website, de Lille has called on Government to look into urgently implementing legislation that will regulate MXIT and Internet blogging, where members of the public can with impunity slander and defame individuals and organisations they do not like.
The statement also claims that another worrying development in cyberspace is the abuse of blogging, which allows anonymous individuals to post slanderous and defamatory comments with impunity about anyone they choose, without the legal consequences they would face in other more reputable print and electronic media.
Over the weekend, a number of newspapers reported on a blog, apparently written by a former male prostitute, disclosing the identities of his prominent clients.
IS ONLINE ANONYMITY A BAD THING?
These reports yet again raise the important question whether or not online anonymity is a good thing or not.
Should bloggers and MXit users be allowed to hide behind nicknames? Surely, people would think twice before defaming others if they had to do so under their real names.
According to Reinhardt Buys, Internet lawyers from Buys Inc. Attorneys, the benefits of online anonymity far outweigh the dangers or abuses.
“The right to speak anonymously by using, for example a nickname, is an inherent element of the general right to free speech. For various reasons, people do not want to associate some comments to their true identities. Prohibiting anonymous speech on the Internet would not only be impossible, but would severely restrict the right to free expression”.
According to the Electronic Frontier Foundation, many people do not want the things they say online to be connected with their offline identities. They may be concerned about political or economic retribution, harassment, or even threats to their lives. Whistleblowers report news that companies and governments would prefer to suppress; human rights workers struggle against repressive governments; parents try to create a safe way for children to explore; victims of domestic violence attempt to rebuild their lives where abusers cannot follow.
Instead of using their true names to communicate, these people choose to speak using pseudonyms (assumed names) or anonymously (no name at all). For these individuals and the organizations that support them, secure anonymity is critical. It may literally save lives.
According to the Chilling Effects Clearinghouse, a collaboration among law school clinics and the Electronic Frontier Foundation to support lawful online activity against the chill of unwarranted legal threats, the Internet has given voice to millions of people who can now share their ideas and thoughts under cover of a pseudonym or screen name. This protection has been critical to opening up discussions among shareholders, political dissidents, victims of domestic abuse, "whistleblowers," and disgruntled employees. But this same anonymity can also shield the stealers of trade secrets and copyrighted material and prevent the unmasking of libel.
According to a statement on the Chilling Effects website: “The ability of Internet service providers (ISPs) to unmask anonymous subscribers and users has proven to be a weakness in the protection of freedom of expression on the Internet. Companies angry about comments criticizing them on public message boards, for example, have found that they can simply file a civil lawsuit with vague, unsupported claims, then issue a subpoena to the discussion's host ISP demanding the identity of the speaker. These subpoenas have effectively shut off discussion in many public forums. ISPs have recently begun to notify their subscribers when they receive these subpoenas, giving them at least a limited opportunity to object. Yet still, many subscribers do not respond in time and their identities are turned over with no analysis of whether their speech actually caused any harm”.
“There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly - to their boss, for example, or the principal of their children's school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support - victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example”.
“They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarrassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows "whistleblowers" reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous – sometimes for their very lives”.
According to Buys, online anonymity is more than a privilege and actually a right, much like other human rights.
“The fact that certain individuals abuse their right to anonymous speech, does not mean the problem lies with anonymous speech itself. There are many legal ways through which abuses of anonymity may be addressed and trying to prohibit or restrict online anonymity would be akin to trying to prohibit any other human right because a small minority of people abuse the right”.
“Although no South African court has expressed itself to date on the question of online anonymity, a number of foreign courts have repeatedly confirmed the important place of the right to speak anonymously in political and social discourse”.
As far back as 1995, the US Supreme Court ruled in McIntyre v.
“The fact that youngsters may use tools like MXit anonymously by chatting with nicknames is an important feature that protects them. These youngsters would be much more exposed to online predators if they were forced to use their real names,” said Buys.
DO BLOG AND CHAT ROOM OPERATORS HAVE A DUTY TO PREVENT DEFAMATION?
During 2003 a number of allegedly defamatory comments was made about Natasha Tsichlas, the MD of the Sundowns Football Club, on the Kick-Off discussion forum hosted on the Kick Off website (operated by Touchline Media) – calling her a “Greek hooker", "idiot", "clown", "prostitute" and "bitch".
Tsichlas applied for an interdict against the Kick Off site, forcing them to remove the comments and prevent any further defamatory comments regarding herself.
On 26 June 2003, the Witwatersrand High Court ruled in favour of the Kick Off site, refusing to grant and interdict against the site.
According to the Judge’s decision: “If discussion forum operators were required to monitor all postings for defamatory content, it would severely restrict the operation of the forum and would furthermore grossly curtail free speech”.
According to Buys, not only case law, but also legislation, protects Internet hosts against liability from third party defamatory content.
Section 75 of the Electronic Communications and Transactions Act protects Internet Service Providers who may host defamatory content against liability if they do not know about it or failed to take it down when so requested in terms of a so-called take down notice.
IN DEFENCE OF DEFAMATORY COMMENTS
Buys argues that one should keep in mind that not all so-called defamatory comments are necessarily bad.
“Sometimes prima facie defamatory comments may be protected by one or more justification grounds like truth and public benefit. In these cases the public’s right to know, weighs more than the individual’s right to dignity or a good reputation”.
DO BLOG AND CHAT ROOM OPERATORS HAVE A DUTY TO DISCLOSE THE IDENTITY OF AN ANONYMOUS POSTER OF DEFAMATORY MESSAGES?
When Internet users subscribe to services that allow them to operate their own blogs or take part in anonymous discussion forums or chat rooms, they first have to register with the blog or chat room operator.
These registrations require the submission of the user’s true identity and contact details. Although the user may provide fraudulent details, his or her email address is generally authenticated by sending the username and password necessary to activate the blog or discussion forum to the email address provided.
The true identities of these users are generally governed by the operator’s terms and conditions, which prevent the operator from disclosing it unless authorised thereto by due legal process.
In other words, blog or discussion forum operators and even the operators of MXit cannot disclose the true identity of a person who uses a nickname merely because somebody alleges that the person made a defamatory comments and requires the person’s true identity, says Buys.
The disclosure of a user’s true identity is subject to due legal process, which means that it may only be disclosed upon receipt of a court order or subpoena authorising the disclosure.
According to Cyberslapp.org a new form of lawsuit called a "CyberSLAPP" suit is threatening to overturn the promise of anonymous online speech and chill the freedom of expression that is central to the online world.
CyberSLAPP cases typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a frivolous lawsuit just so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them.
Cyberslapp.org is sponsored by a coalition of civil liberties and privacy groups who have come together to protect the right to speak freely and anonymously on the internet (www.cyberslapp.org).
WHAT STEPS MAY BE TAKEN AGAINST ANONYMOUS POSTERS OF DEFAMATORY CONTENT?
Those whose are defamed anonymously on blogs, bulletin board or chat rooms have a number of recourses.
Generally, the first step is to inform the blog or chat room operator of the defamatory postings and requesting the removal thereof. Whereas some operators may publicly display an abuse report facility, the procedure to contact others may be detailed in their respective terms and conditions.
For example, MXit complains may be send to support@mxit.co.za whereas a complaint against a blog operated by Google’s Blogger.com is governed by its Content Policy available at www.blogger.com/content.g.
If the site with the defamatory content is hosted in
As a last resort, a court may be asked to issue a court order authorising the operator of the blog or chat room to disclose the true identity of the person who posted the defamatory messages.
If the person’s identity is known, a civil case could be instituted to recover damages and ensure the removal of the defamatory postings.
DON’T SHOOT THE MESSENGER
Buys offers some sobering advice for those who prematurely calls for the regulation of tools like blogs, MXit and chat rooms.
“Just as we cannot prohibit radio stations because somebody made a defamatory statement over the radio, or prohibit newspapers because a defamatory article appeared in a newspaper, or prohibit telephones because somebody said something nasty about somebody else over a telephone, we cannot prohibit or restrict anonymous free speech on the Internet - and likewise, cannot justify the regulation of tools like blogs, MXit and chat rooms”.
Resources:
· http://www.chillingeffects.org/johndoe/
· http://www.chillingeffects.org/johndoe/faq.cgi
· http://www.eff.org/Censorship/
· http://www.eff.org/Privacy/Anonymity/
· http://www.eff.org/bloggers/
· http://mybroadband.co.za/vb/showthread.php?t=76106&highlight=Reinhardt
Regards,
REINHARDT BUYS
MANAGING DIRECTOR
BUYS INC. ATTORNEYS
