The main theme found in the readings this week’s is Anonymity vs Accountability. When should an individual have the freedom to conceal his identity, and when should his anonymous identity be forcibly revealed?
As Citron and Salove have made clear, part of the issue with anonymity is people believe they are completely untraceable; thus, people believe they can post obscene or discriminatory opinions on the Internet without any repercussions. Unfortunately, it appears anonymous bloggers do not often face consequences for their actions because it is expensive to file a suit against them. It is expensive for people to hire the service of law firms such as ReputationDefender, to protect their reputations on the Internet.
Consequently, instead of having a handful of lawsuits germane to seriously protecting an individual’s emotional estate and reputation, it is more common to come across cases in which wealthy individuals or corporation request a subpoena to unveil the identity of an anonymous blogger (aka CyberSLAPP cases). A possible solution to avoid CyberSLAPP cases is to make it mandatory for large corporations pay a refundable fee to unmask an anonymous blogger. After the identity of the blogger is unveiled, the corporation can retrieve the fee it paid for the subpoena ONLY if it carries out a lawsuit against the blogger. This may reduce the number of CyberSLAPP cases because corporations would have to invest money in a case as a demonstration of their commitment to the case. I doubt many corporations would pay a large sum of money simply to unmask an anonymous blogger.
I would not extend this policy to individuals, however. To extend this method to individuals is unfair since not everyone can afford to pay a fee to unmask an anonymous blogger. I believe bloggers, or cyberbullies, would not be commonly found if they knew how easy it is to trace them on the Internet. As the FAQ we read demonstrates, is appears most people are unaware that they can be traced on the Internet and have their anonymity on the net taken away from them. Perhaps educating the public about the realities of the Internet in itself will reduce the amount of harassment on the internet.
Also, people should know there are helpful resources on the Internet to protect themselves against cyberbullies and cyber stalkers. Internet sites such as http://www.cyberlawenforcement.org/index.html (Wired Cops) and http://www.wiredsafety.org/ (Wired Safety) have committed themselves to protecting individuals from harassment on the Internet. If people are aware they can be protected, or prosecuted again (for those harassing others), self and social regulation on the Internet would occur.
I think you're on the right track in terms of trying to deter CyberSLAPP suits by raising the cost of bringing frivolous law suits. However, your solution may be somewhat over broad. A plaintiff may choose to drop a law suit after the identity of the defendant has been revealed for legitimate as well as illegitimate reasons (including the discovery that the defendant has no money and would therefore me unable to pay any judgment the plaintiff might win -- we call these kinds of defendants "judgment proof").
ReplyDeleteAdditionally, you sensibly recognize that different parties will have different abilities to pay the upfront fee. Is distinguishing between corporations and individuals the best way to solve this, however? To Microsoft, a fee may be much less meaningful (and therefore much less of a deterrent in terms of bringing a CyberSLAPP suit) than it would be to a smaller mom & pop company. It's going to be hard to calibrate the fee to provide the correct level of deterrence (while on a more normative level, does it send a problematic message to be charging for access to the courts?).
Finally, I'm not sure I agree with your suggestion that educating people about how easy it is to trace the comments they make on the Internet back to them would reduce the amount of harassment on the Internet. Wouldn't this simply cause bad actors to do a better job of covering their tracks, thereby making it more difficult to punish them?