ANONYMITY IN THE BLOGOSPHERE A RIGHT, NOT A PRIVILEGE
Even though mystery "rent boy" Skye recently removed the list of his alleged clients from a web log (blog) which threatened the reputations of a number of high-profile South Africans, the furore created by the site is still raging.
The website has sparked calls for government regulation of blogs, counter-claims that this would be an attack on the right to free speech, and heated debate over whether anonymity on the web is a good or bad thing.
Independent Democrat (ID) leader Patricia de Lille has called on the government to urgently look into implementing legislation that will regulate the use of internet blogging and mobile instant messaging application MXit (pronounced "mix it").
MXit, which was developed in SA, allows users to send and receive text messages to and from personal computers that are connected to the internet. It claims to have a registered user base of more than 3-million, with 5-million log-ons a day and more than 100-million messages sent a day.
Reinhardt Buys, an internet lawyer from Buys Inc Attorneys, says the benefits of online anonymity far outweigh the dangers or abuses."The right to speak anonymously by using a nickname is an inherent element of the general right to free speech. Prohibiting anonymous speech on the internet would not only be impossible, but would severely impact the right to free expression."
The Electronic Frontier Foundation, a non-profit group working to protect people's digital rights, says many people do not want the things they say online to be connected with their offline identities. It says they may be concerned about political or economic retribution, harassment and even physical threats. Instead of using their names, they choose pseudonyms or no name at all.
An example of a benefit of anonymity is whistle-blowers who report things that compa-nies or governments would prefer to suppress.
Buys says that online anonymity is more than a privilege and is in fact a right, much like other human rights."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 very much exposed to online predators if they were forced to use their real names."
Johannesburg-based lawyer Lance Michalson says that there is no direct law on blogging, although laws against defamation can apply.
In 2003 Natasha Tsichlas, then MD of Sundowns Football Club, applied for an interdict to make Touchline Media remove comments about her posted on their chat website. The court refused, ruling in favour of Touchline on the basis that there may be good defences justifying the statements.
Michalson says section 75 of the Electronic Communications and Transactions Act protects internet service providers who host defamatory content against liability if they do not know about the content, but it compels them to remove it when asked to do in terms of a so-called take down notice.
Michael Yeates, an associate at Leppan Beech Attorneys, says there is a risk to companies when employees use blogs to make statements that fall into the category of defamation. "A business is not just an entity, it is also a juristic person, which means it has certain rights and responsibilities before the law," Yeates says.
If an employee defames someone using the company's facilities, the critical question is whether this was done in an official capacity or just as a private aberration, he says. The company will be held liable in the first situation by way of the doctrine of vicarious liability, but not in the second, he says.
"This is where it becomes essential for businesses to have strict policies about the use of the internet and these policies have to be enforced."
Yeates says employees must know what defamation is really about and the company itself needs to have a code of conduct that forbids defamation and deals with similar issues, such as hate speech.
Buys says those who are defamed anonymously on blogs, bulletin boards or in chat rooms have a number of remedies.
The first step is usually to inform the blog or chat room operator of the defamatory posting and ask for its removal. If the site is hosted in SA, the take down procedure provided for in the Electronic Communications Act may be used by submitting a notice to the service provider hosting the site.
A court may be asked to issue a court order authorising the operator of the blog or chat room to disclose the identity of the person who posted the defamatory material, Buys says. Once the identity of the person is known, a civil case can be instituted to recover damages, he says.