The Question: Does one have the right to post on the internet whatever they want anonymously?
The issue: Over the last several years, we have seen more and more cases of people posting anonymous comments on social networking pages, internet blogs and just about anywhere else that they can find an open forum. Many of these postings are less than kind. In fact, some are downright malicious. Public figures such as politicians, have long been accustomed to this sort of thing, and by and large, as a public person, this simply goes with the territory. In fact, in the famous case of New York Times v. Sullivan, the Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice, that is, with knowledge that they are false or in reckless disregard of their truth or falsity. Okay for public officials. But what about non-public persons? Can you say anything you want about your neighbor, your classmate, a rival at work, no matter how malicious and false the statement may be? The answer of course is generally no. That's the reason we have laws against libel and slander. Enter the internet. A week hardly goes by when we do not read about a court case involving someone who maliciously and falsely makes accusations against that neighbor, classmate or business rival, and tries to hide their identity (and thus shield themselves from liability) through the anonymity of the internet. The argument is that the internet is the new frontier of free speech. It is the only domain left where anyone with a PC can express whatever views, ideas, or opinions they may hold, however, goofy, without fear of censorship or legal consequences. To eliminate, or at least pull back in part the veil of anonymity that is the current hallmark of internet activity, would result in a degradation of one of our most cherished rights, the right of free speech. Do we agree?
I say: No. It is inherent in the concept of rights, that where there is a right, there is a responsibility. It is ingrained in our legal system, that if, in the exercise of your rights, you cause injury to another, even if unintentionally, you may be held accountable to that injured party for damages. From an ethical perspective, and apologies to my friends in psychology who may disagree with this, as a unique and rational person, I have individual responsibility for all of my actions. That is not to say that there are times when my decision to do or not do something may be less than a totally free choice, but apart from those instances where in fact I had no freedom of choice whatsoever, I still bear responsibility, in whole or in part, for the consequences of my actions. With the current issue, I believe this is not even a close call. To argue that someone who intentionally, falsely and maliciously maligns someone else, causing in some cases permanent and incalculable harm, has no responsibility for that harm because they hid their identity on the internet in the name of free speech, is not acceptable to me, on either level, legal or ethical. In fact, I would go further and say that even under the standard of New York Times v Sullivan, this would not be acceptable even in cases involving public officials. How less acceptable should and must it be for innocent private citizens?
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10 comments:
I agree with Mr. Roe - if we have laws governing communication they should apply regardless of media type. Words from the internet can be more potent that those in a newspaper - see the case of Megan Meier, who killed herself in 2007 due to cyber-bullying. Freedom always has laws that accompany it, so unless one is pro-anarchy, anonymity is something that should not be a right on the internet.
That said, however, I do believe in barriers to disclosure. There should be forums that allow for quasi-anonymous discussion, so that one may not fear retribution from an employer or fellow citizen just for expressing one's thoughts. Anonymity is fine, as long as people who violate the law can easily be identified and prosecuted by those who are harmed. A side topic here is what constitutes private discussion vs. public...can I create a private journal and slander whomever I want, as long as I keep it private?
No doubt, anonymous forums make for some rough discourse that can frustrate a person. However, one can always choose to not participate in those forums, and create your own forum where more civil rules (as dictated by one's omnipitent editing power) may apply. :)
Hi greentank. You asked, "A side topic here is what constitutes private discussion vs. public...can I create a private journal and slander whomever I want, as long as I keep it private?" The short answer is yes. The concept behind libel and slander is communication to another. Feel free to harbor as many false and malicious thoughts you have about anyone, as long as you keep them to yourself, or in your non-communicated private journal.
Do individuals have the right to post on the internet whatever they want anonymously? The short answer is no and then yes.
I will first explain why no. When we are discussing this issue, we are dealing with the freedom of speech and expression (expression more so than speech). As far as this particular freedom is defined in the context of modern law is the freedom of any act seeking, receiving, and imparting information or ideas with the use of any medium without censorship and/or limitations. It is recognized as a human right under Article 19 of the Universal Declaration of Human Rights. I think the key here is the part where it states, "...without censorship AND/OR limitations." This simply means that both these conditions DOES NOT have to be met. And indeed it doesn't. The freedom of speech is directly related to many other rights, and if it should conflict with these other rights limitations may be imposed. Of course, also as Professor Roe has stated, where there is a right there are responsibilities. If we choose to accept these premises on which the definition of the freedom of speech and expression is founded on, then one has very little choice but to reject the notion that an individual does have the right to post whatever they desire over the internet anonymously.
However if we do not choose to accept these premises and these laws as the governing body of work in which we define what our rights are and are not the answer to the question becomes much more unclear. Before I go forth with this discussion any farther I would like to first state that I am not saying I believe these malicious and slanderous comments are right, nor am I suggesting that they are justified...nor do I support such type of posts. Frankly everything I will say from this point on DOES NOT come from any definitions of any written documents not can I cite them to some source. The following assertion is purely based on my belief.
Part II
When an individual (such as yourself) is first brought into the world you are given a larynx more commonly known as a voice box. It serves the biological and natural function of producing noise. As you grow up (avoiding issues involving accidents or natural defects) it will function as your source for which you will be able to speak and communicate via verbal language. One can argue that this function of speech may in fact be a person's (once again such as yourself) primary mode of communication. However it would be very difficult for one to argue that it is not a natural function (of your larynx) and capability (of speech) that you are born with. Now you grow up and go through life, and society (via parents, guardians, teachers, peers, etc) teach you what is appropriate communication and what is not. You accept these values to be true, because well...let's face it you don't know any better or worse because society has not taught you differently. Therefore it is fair for one to assume that you should not say certain malicious or slanderous comments. You can certainly say that you have a social responsibility to the rest of society. However does society in turn have the right to impede your natural, biological, innate abilities and functions? If you have legs to run, is it right for somebody to ask you not to use them for that purpose? I say that if you are given natural, innate ability or potential to do something that all other human beings (once again with exception to defects) are able to do it is against logical reason to ask you to contain that ability.
Rights do come with responsibilities, and if you break the rules you should and ought to be punished. However the freedom of expression is just that, "freedom to express", to have the liberty to say or post what it is truly on your mind. This is not to say there will be no consequences that follow, but what is the point of calling a right "FREEDOM" of anything if we don't mean it.
I agree with the statement "Freedom is not free." But I contend let those who believe in that freedom at least exercise it before they have to pay for it.
George - what if my private journal with slanderous content is found and made public by somebody else, or by accident?
TAR21 - legs can not only run, but they can kick. Hands can paint, but they can also punch. Some innate, natural actions most definitely interfere with other people's rights and wellbeing, so I do not agree that it is unnatural for society to restrict activities. It is, in fact, essential to retain order.
That said, everyone on the planet is technically "free" do do whatever they want...but they have to face the consequences, which may vary.....greatly. I think what George is referring to when implying someone is "free" to do something is that they can do it without any consequences. And imho it is not a right to be free to communicate anonymously in any way you choose...there needs to be limits in most thing, or you will always find taking things to the extreme.
Hi Tar21:
You make some excellent points. Let me respond to one in particular.
You said, "However does society in turn have the right to impede your natural, biological, innate abilities and functions? If you have legs to run, is it right for somebody to ask you not to use them for that purpose? I say that if you are given natural, innate ability or potential to do something that all other human beings (once again with exception to defects) are able to do it is against logical reason to ask you to contain that ability."
This, from an ethical perspective is the "argument from nature" position. When it comes to the exercise of perceived individual rights based on an innate nature perspective, I pose the following based on your analysis. What of the sex drive? Not only is it certainly in the nature of man (or women) to have such a drive, but presumably without it, the species would cease to exist. Assuming this is true, to respond to your point directly, is it reasonable for society to impede one's ability to express that drive in certain circumstances? I believe most would say yes. Thus society has laws against rape, pedophilia and other actions that although one might argue were committed due to a momentary "natural inclination and ability", society does not recognized as an exercisable right, again, simply because of an arguable natural urge or desire. Put another way, it is said that my natural right to raise my hand in a fist, ceases to be a right when I direct that fist into someone's face. You may argue however, as I believe that you are, that in fact one does have the right to direct one's fist into someone else's face, only that there may be legal consequences for doing so. The danger with this position, as I see it, is that we then leave it up to the law to determine what, or more properly who, is to be protected in the exercise of their rights. History has shown this can have very unfortunate results. 1939 Germany being a good example.
I would conclude that your rights, whatever we may agree that they are, do not necessarily emanate from a purely "nature of man" position, but rather, have a rational basis and exist within the context of society and one's interaction therewith.
Hi Mark:
To your specific question, libel is considered an "intentional" tort, Thus, "malice is the gist of the action," as lawyers like to say. If someone steals your private journal, and communicates false and malicious comments from that journal, you have no liability for that action. GR
To Mark and Professor Roe, first I would like to acknowledge Professor Roe's counter argument using a example involving sex drive and rape. I can honestly say that in the time that I have had to read the post until now I have not formulated a sufficient counter to your counter, and therefore I a tip of the hat to you good sir for that (Although I am not sure if we don't take into account the difference in the severity-especially physical severity- of the two situations being compared).
However if we are worried about the possibility or rather the impossibility of consequences to an unknown internet poster I would say that although there lies insufficient enforcement of lawful consequences to such perpetrators, there is in fact sufficient enforcement of consequences in the commercial realm, and the realm of 'street justice' or I guess in this case 'cyber-street justice'.
For example many sites such as Youtube.com allows the original poster to remove comments that they see as inappropriate, or to even block the perpetrator all together. Malicious or slanderous comments can also be reported to the site administrators. Of course other users are often quick to come to the defense of any poster who is simply getting bullied by another user, and ultimately if you are found to be too offensive on some sites I believe they can suspend your account permanently. There is also the chance of actual consequence in real life if your friends or associates find out that it is you leaving many very negative comments on the internet. They may lose respect for you, you may get fired from a job, or they may decide to discontinue their association with you for good. And of course the basic consequence is that one can simply punish these perpetrators by ignoring them. Because they are over the internet a good thing is that it's not as easy for them to get after you than if you were talking to them in person. Any number of these things act as potential consequences and deterrents to anonymous posters on the internet. Therefore if the assumption by the opposition is to assume that where there is a right, there lies responsibilities and there-in lies consequences, and malicious anonymous posters lack consequences I would have to humbly say I do not believe that is the case.
Now it is certainly fair for one to argue that those consequences I have listed are either not enough or they are not 'real' consequences, and I accept those arguments. However if that is the case I dare ask what then is 'enough' of a consequence and what then is 'real' consequences?
If your answer to the latter half of that question is 'real' consequences are those that can be produced and enforced by the law, then I would have to once again dare ask you, why? Since when did consequences need to be provided for by the law? Are consequences provided by society not enough? Are the consequences handed down by the very laws that we live by not in fact a creation of the society?
Furthermore, if we conclude that these individuals do not have a right to act as they do over the internet then where do we draw the line in the proverbial sand? What should be allowed and what shouldn't be? Who then will enforce these should-be(s) and shhouldn't-be(s)? And how will they enforce them? And if they are in fact able to enforce them, will it ultimately even work?
As long as these questions remain unanswered the rights of these offenders to post what they wish will continue to exist. The answer right now is that these posters are in fact free to post as they wish, because nobody can come up with a sufficient way of preventing such things (at least not without infringing on the very freedoms that we have come to grow accustom to..perhaps a little too accustom to). You cannot change the present without providing a good solution. And the problem with coming up with a good solution is that once we start imposing restrictions on these violators we will inevitably end up restricting the non-violators.
Until there is such a solution, these people have the right to post as they choose to.
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