Rami Mor is an alternative medicine practitioner. In 2006, a number of anonymous talkbacks appeared on a popular Israeli medical site criticizing his competence, including one calling him a “charlatan.”
Statements like this would normally provide a clear basis for a libel suit, but Mor couldn’t directly sue the anonymous poster. Instead, he sued the Internet service provider, demanding that it disclose the identity of the poster so that he could indeed bring his case to court.
This phenomenon is relatively new, and as yet no law addresses it directly. In addition, the situation raises a large number of very fundamental constitutional issues, both substantive and procedural.
The case made its way through the system to the Supreme Court, which this week, in a split decision that extends almost 70 pages, decided that pending appropriate legislation the court cannot intervene.
Justice Eliezer Rivlin pointed out that the case involves a conflict among three very fundamental democratic rights. On the one hand we have the right of free speech and the right to privacy, which militate against disclosure. On the other hand we have the equally important right to maintaining one’s reputation.
It’s true that the right of free speech does not include the right to defame, but the case before the court was not a libel case per se. The consideration immediately under discussion was whether the court can compel the disclosure of someone’s identity because of what he or she wrote, and this does touch on the question of free speech.
As Rivlin points out, too lenient a ruling in this case could have a chilling effect on permitted speech. No one wants to be dragged into court, even if he knows that in the end he will be vindicated. As we have pointed out in previous columns, the right to free speech has repeatedly been held to inherently include the right to anonymous speech, at least in a political context.
On the substantive level, Rivlin suggested a number of reasons why talkbacks might deserve somewhat more protection than other libelous speech:
• Readers in any case attribute little credibility to talkbacks, and to anonymous talkbacks in particular;
• There are generally a large number of talkbacks so any particular comment may be considered to have negligible importance;
• The victim and his supporters have equal access to the forum, and thus claims can be readily rebutted.
There is also a basic procedural problem involved. Procedurally, Mor has to, in effect, first sue the person who criticized him and then demand that the ISP disclose that person’s identity. Suing unidentified individuals involves a number of complex procedural issues that Rivlin discusses at length.
Procedural issues also have profound ethical weight. For example, procedure guarantees that a litigant has the right to respond to claims made against him, and that does not take place as long as his identity is anonymous.
A case could be made if he knows he is being sued and even so, decides to maintain his anonymity. He thus may be waiving some of his rights, but we are generally reluctant to dispose of rights in such a wholesale fashion, and in any case, a person will likely not know of the legal action against his anonymous talkback.
(One court abroad suggested that the ISP notify the person of the case and allow him to respond anonymously, but again, this kind of novel remedy should really be the responsibility of legislation.)
There is no room here to discuss the dissenting opinion of Justice Elyakim Rubinstein, who thought that the referring court should be given authority to decide the case on its merits.
I think the fundamental public interest question here revolves around the first consideration mentioned by Rivlin: the bar for libel should be high because little credibility is granted to talkbacks.
This consideration is partially circular. If talkbacks were strictly subject to the laws of libel, then people would give them more credence. Rivlin is correct from a judicial point of view, but if we are weighing legislation a basic question would be: How much credibility do we in fact want talkbacks to have?
If we would like this popular medium to be taken seriously, then we have to give it the appropriate legal status. This could be done either by making it easy to disclose the identity of posters or alternatively by placing responsibility on the site where comments are posted, just as other communications media can often be held responsible for libelous statement printed by them, even when they didn’t compose them.
Alternatively, the legislature could be content to leave talkbacks a battle royal among lightweights, as it is today. Anyone who wants to make a serious point is obliged to find some more serious medium, one where anonymity is not countenanced.
Ultimately, I think that turning talkbacks into a serious forum for the
exchange of ideas would be a daunting task. Legislators will probably
ultimately be convinced by the considerations enumerated by Rivlin and
do little to create genuine accountability among talkbackers.
If any particular site wants to create a serious talkback forum, then the site itself can forbid anonymous email@example.com The writer is research director at the
Business Ethics Center of Jerusalem, an independent institute in the
Jerusalem College of Technology (Machon Lev).
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