Navigating the tide of anonymity online: building a responsible use of the internet
The internet has evolved to be a decentralised primary place of refuge for many of its growing billions of users. Using this medium, users can be whoever or whatever they want to be and to an extent, exercise a degree of control over their personal information made available to the public. This attitude is forged by the belief that an individual can remain anonymous on the internet if he so chooses. It is therefore safe to assert that the internet has evolved to be the modern-day facilitator of free speech and self-determination guaranteed by a perceived expectation of privacy.
Therefore, in order to shroud their identity, internet users might operate using a pseudonym because most social media platforms do not mandate users to register with their actual names – on twitter it is called a “twitter handle” (though some platforms require verification of identity). Consequently, the anonymous nature of the internet often upsets the balance between individual rights. On one hand is the freedom of expression and on the other, the right to privacy and right to seek legal remedy where appropriate.
Anonymity online means different things depending on the context. It could mean the ability to navigate the internet without being identifiable or using the internet under a pseudonym. It could mean using technical tools like Tor, VPN to stay anonymous. In an increasing age of mass surveillance and crackdown on dissent, the ability to navigate the internet anonymously becomes a survival mechanism for journalists, human right activists and other persons who need to keep their identity away from the state. The increased commodification of data has also endeared some persons to surf the internet under pseudonyms to minimize exposure of their digital trail or footprint. However, like every good innovation in the wrong hand, the ability to be anonymous can be used for and by criminal and illegal elements ranging from identity theft, hate speech, fraud, cyber bullying, online defamation, spread of fake news and other manifestations of cybercrimes, violation and abuse of the rights and freedoms of others. The availability of these tools could therefore make the Identification of perpetrators difficult.
Surviving the tide: Bringing an action by a victim
It is trite that constitutional rights remain absolute until they are exercised in a way that conflict or jeopardise the rights of another individual or violate derogations prescribed by law. It then follows that, if the exercise of free speech or any other constitutional right through the internet under the garb of anonymity tramples on the right of another, there must be a remedy for the victim. This stems from the maxim Ubi Jus Ubi Remedium which was enunciated by Lord Chief Justice Holt who held in the case of Ashby v. White that where one’s right is invaded or destroyed, the law gives a remedy to protect or provide damages for its loss. However, the right to seek redress against an anonymous internet user becomes hampered because a right of action in a civil claim can only be maintained against an identifiable person or his estate.
In order to forestall a situation where an individual whose right has been hampered will be denied a legal remedy because of his inability to identify a wrongdoer, the courts in England devised an equitable remedy. This remedy imposes a duty on a person seised with information on the identity of an anonymous wrongdoer to disclose same in some circumstances. This remedy was developed in the case of Norwich Pharmacal v Customs and Excise and has also been approved in Ireland in the case of Megaleasing (UK) Ltd v Barrett where the court held that an innocent third-party who has inadvertently facilitated a wrong can be compelled in certain instances to reveal the identity of the wrongdoer, particularly if the wronged party will be precluded from seeking a judicial remedy without the disclosure. Over the years, and due to the nature of the internet, there has been increase in applications for the grant of Norwich Pharmacal orders within an internet context.
In the internet context, this order will entail compelling the internet service provider to provide the applicant with the identity of the person behind the keyboards thereby, lifting the veil of anonymity. This could however be difficult with the proliferation of technologies that could conceal identity like the Virtual Private Network (VPN), Tor browser etc.
Balancing the tide
The pertinent question to be asked is how do we strike a balance between these competing rights? On one hand, is the internet user who to some extent has an expectation of privacy or is guaranteed the privacy of his personal data and the right to exercise his fundamental right of speech anonymously and on the other hand, is the aggrieved individual who also has the right to seek redress.
It must be pointed out that the Norwich Pharmacal Order is an equitable remedy. This means that the Order is largely subject to the discretion of the court, and is not to be used arbitrarily. Rather, the Order must be exercised judicially and judiciously with reference to the peculiarities of each case. The order was first adduced in the internet context in the case of anonymous internet user Totalise plc v The Motley Fool where the court highlighted guiding principles in exercising its discretionary power, that is, the applicant must show the court that an actionable wrong has been committed (a prima facie case); the respondent is ‘mixed up’ or has facilitated the wrongdoing even though not liable; the plaintiff seeks the identity of the wrongdoers; the defendant is in a position to provide the information sought; and, the plaintiff has no other means of ascertaining the information sought. There must be a convergence of all these conditions in the set of facts presented to the court before it will exercise its discretion in granting the order. Consequently, it is argued that though a Norwich Pharmacal Order is intrusive of the right of privacy, these conditions stipulated by the court can help reduce its use and will become an option only as a last resort. However, the foremost pertinent question to ask with regard to the conditions set is: what will qualify as a prima facie case? A prima facie case is not necessarily a winnable case; it just must present facts that are sufficient to raise a presumption in favour of the applicant.
In G v. Wikimedia Foundation the applicant alleged that the 3rd party whose identity she seeks had used the respondent’s platform to publish defamatory remarks about her and her kid. She asserted that the intention of the unknown internet user was to blackmail her using that platform. She was able to convince the court that there is indeed a triable issue and that there will be no other avenue to unveil the perpetrator without the help of the respondent. The court granted the application.
In some circumstances however, the threshold of a “prima facie case” might not be sufficient to balance the competing rights. The case involving Jim Ferry a business man in Ireland and Facebook is a case in point. In that case, the applicant vide an ex parte application had urged the court to grant a Pharmacal Order requesting Facebook to disclose the identity of the user behind a parody page “Jim Refuse Ferry” whom he alleged to be leading a conspiracy to implicate him in an unauthorised waste disposal scheme. The court granted the prayer having being convinced that a wrong had been committed and a prima facie case established. It was later discovered in subsequent investigations that the statements published on the parody accounts were true even after the identity of the internet user had been disclosed. Therefore, in an attempt to balance the rights of parties, the court is not insulated from errors in appraising what should qualify as a prima facie case.
It is the opinion of the authors that the imaginary balance should be a little bit tilted to the side of the internet user. The right of privacy is a right which the courts as the last refuge of everyman must jealously guard. Not every “prima facie” case should be a ground to disclose the identity of an internet user.
Another point which might showcase the seeming bias for the applicant is the procedure for the grant of the order – exparte application – which does not necessarily give a level playing ground for all parties involved especially when it affects a delicate fundamental right like privacy.
Flowing from the principle of audi alteram partem and the need to fully balance rights of all individuals, the party whose identity is sought to be disclosed should be afforded an opportunity to make representations as to why he did what he is accused of and why he wishes to remain anonymous. For instance, in a defamatory claim, a post could be defamatory but also true. Since the court at that stage will not be obliged to go into the substantive issues, it will not be in the best position to determine if there is a prima facie case against the unknown person.
Aldous L.J in Totalise plc v The Motley Fool reiterated this point when he held that granting this order will be quite difficult for the court when it cannot take representations from the person whose identity is to be revealed. His Lordship suggested that the anonymous user should always be put on notice so that he can make representations albeit discreetly to enable the court reach a just conclusion. From the recent decisions in Ireland and England, it is evident that the courts have failed to consider the necessity of informing the internet user before it grants the order. The other conditions stipulated in Totalise plc v The Motley Fool can be summed up under the principle of balance of convenience.
It is trite that the court will only grant an equitable remedy when the balance of convenience is in favour of the applicant. It means that the court will consider the party who would suffer the most if it fails to exercise its discretion in granting the application. Once again, with the aid of the facts adduced to the judge, he will consider the competing rights on an imaginary scale with the aim of doing justice. This flows from the principle that an individual will not be allowed to use the law as an instrument to commit or cover up an illegality. For in a defamation action, the applicant must show that he has suffered, or he is suffering greatly from the actions of the anonymous user which will not be alleviated until the identity is revealed. In the Irish case between McKeogh v. John Doe 1 (User Name Daithii4u), the internet user had wrongly identified the applicant as the man in an online video who had made out with a fifty Euro taxi fare. This allegation gained traction online subjecting the applicant to obscene and generally obnoxious comments. The question here is whether the balance of convenience was in the applicant’s favour. Of course, it will amount to grave injustice if the applicant is not given the opportunity to seek redress from the courts because of the anonymity of the internet. In cases like this, the fact shows that the balance of convenience tilts in favour of the applicant. It shows that the right of privacy although delicate can be derogated from if necessary. On the other hand, if it appears that the balance of convenience is not in favour of the applicant the court must refuse the application, that is, when the actions of the anonymous internet user have not caused a proportionate harm to occasion disclosing his identity. In the case of Ryanair v Johnston, the defendants operated a bulletin board for employees of the plaintiff. The plaintiff sought a Norwich Pharmacal order seeking the identities of persons who had made comments online which the plaintiff alleged were threatening and abusive. The court refused; as it did not agree that the comments were wrongful or actionable and further noted the application was brought in bad faith. He who comes to equity must come with clean hands.
In the same vein, while highlighting that privacy will only be interfered with when it is only necessary, Parkes DJ held in the case between Sheffield Wednesday v Hargreaves that it would be disproportionate and unjustifiably intrusive to make an order for the disclosure of the identities of users who had posted messages that were barely defamatory or little more than abusive or were likely to be understood as jokes, the judge comparing some of the allegations to nothing more than “saloon-bar moanings” or “banter”. From these submissions, it is argued that the court will use its discretion only when it really matters, that is, when there is risk of causing irreparable damage to the applicant if the order is refused. The exercise of the Norwich Pharmacal Order could be compared to that of a nuclear weapon, an option available to all super powers but will never be exercised until it is highly warranted. This is also the case with the Norwich Pharmacal order, the order is only required when the rights of others are in grave jeopardy.
The authors opine that the pertinent question that should interest the judge is; whether a greater injustice will be occasioned on the applicant if the order is not granted. From the Irish and English jurisprudence, it is obvious that the imaginary scale of balance tilts a little bit towards protecting the privacy of individuals online. This stance is important as a matter of public policy. Since the bulk of our social interaction has moved on to online platforms, there is a need for governments to create an atmosphere where freedom of speech can be exercised appropriately without threat or coercion.
Lifting the veil of digital anonymity in Nigeria
The Nigerian cyberspace is plagued with increasing identity theft, fraud, cyber bullying, online defamation, spread of fake news, hate speech and other manifestations of cybercrimes, violation and abuse of the rights and freedoms of others. The government through the Cybercrime (Prevention and Prohibition) Act 2015 legislated on a number of violations of freedom and rights of Nigerians online. The Act prescribes penalties for violations that could be done under the garb of anonymity like cyberstalking, child pornography, cyberbullying, identity theft, etc. However, the Act fails to provide a regime for private relief. Though, Section 49 of the Act provides for compensation and restitution in cases of fraud.
There are no reported Nigerian cases on unravelling anonymity online in Nigeria. Nigeria, being a common law jurisdiction can take a cue from the cases and create a decent framework for victims of abuse and violation perpetuated under the garb of anonymity. The Nigerian Court can adopt the reasoning adduced in the Court decisions to establish the test, rule, define limit of application and possible exception; this will balance the competing rights guaranteed under the Constitution and similarly protect the rights and freedoms of Nigerians virtually against unscrupulous element that utilise anonymity on the internet for awful motive.
Finally, we believe that there is no hard and fast rule to the grant of the Norwich disclosure order. It is an equitable remedy which means that the facts and circumstances of each case play a huge role on how the court will eventually exercise its discretion. The order will strengthen the framework for establishing liabilities where the current state of our law of tort is inadequate, and to claim relief and compensation against perpetrators which by extension will promote the responsible use of the internet.
Kolawole Opeyemi – firstname.lastname@example.org
Ridwan Oloyede – email@example.com