Forum Moderators: phranque
It is the first ruling of its kind in the Netherlands on Internet privacy and could have far reaching consequences for other Internet providers.Supreme Court spokesman Steven Bakker said the court found Pessers' claim of having suffered damages sufficient to order Lycos to release its client's name and address, even though no criminal offense had been committed.
(Emphasis mine.)
Just me, or a scary precedent?
[edited by: trillianjedi at 8:03 pm (utc) on Nov. 28, 2005]
[edit reason] Fixing Link [/edit]
It may be true to say that no criminal offence was comitted, but a civil offence (slander/libel/defamation) was committed. I can see no justification for preserving the anonymity of someone who abuses the privilege.
Kaled.
Lycos Ordered to Tell Web Client Identity [news.yahoo.com]
From the article:
[...]so he could seek financial damages allegedly resulting from the allegations.
The way the article reads, and as I understand it, "A. Pessers" has been allegedly slandered. If there's proof that this individual has been harmed, then I'd feel comfortable with the ruling. In the absence of proof, I worry that this becomes a tool for identifying ones' "enemies" because you are displeased with what others say about you.
The way the article reads, and as I understand it, "A. Pessers" has been allegedly slandered. If there's proof that this individual has been harmed, then I'd feel comfortable with the ruling. In the absence of proof, I worry that this becomes a tool for identifying ones' "enemies" because you are displeased with what others say about you.
The problem is that is NOT all it will be used for. If someone is able to say "This person damaged me, I want their identity", with no proof, it simply opens the door to people being able to find out the identity of anyone they run into on the net for their own reasons (stalking etc.).
Seems to me their needs to be much more to this than a mere allegation before the courts should rule that the identity must be released.
Kaled.
The 'proof' will be determined valid or not by a court. The plaintif needs to know the defendant's identity to get him there!
Anyone can sue anyone (in US at least). I could sue someone that replied to a post I wrote in a forum. It doesn't mean the case wouldn't be thrown out of court. All a person would have to say is, "I want to sue this person" and they get your personal information and you might not even know it. Everyone will be scared to say anything that even slightly pisses off another person because that person could be a psycho that could show up at your door with a chainsaw.
Hmm, there's just one problem with this, you're not going to find a court that will make such an order without proper evidence - don't believe me? then try it. See if you can get a court order giving you my address. If you can, I'll eat my words.
Kaled.
The judge wrote this about why he chose a higher standard for a plaintiff to meet before the identity of the allegedly defaming defendant could be ordered revealed:"We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously," Steele wrote. "The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all."
He wrote that the internet is a "unique democratizing medium unlike anything that has come before" and equated blogs and chat rooms in some instances with the founding fathers' pamphleteering. For that reason, he held that a plaintiff alleging defamation would have to show evidence of defamation, not mere allegations, sufficient to overcome a defendant's motion for summary judgment. That is a very high standard. The judge was obviously aware that lawsuits are brought sometimes not for money or redress but as a weapon to suppress speech or to intimidate.
See much more detail at Groklaw:
[groklaw.net...]
Hmm, there's just one problem with this, you're not going to find a court that will make such an order without proper evidence - don't believe me? then try it. See if you can get a court order giving you my address. If you can, I'll eat my words.
I went to a judge and he told me that before he can force WW to give me your information I must first contact them and request it. I emailed Brett and he said he could do one better than giving me your IP address. He said he would tell me what street you live on. He says you live on Sesame Street, but I can't find it on any maps, and no one will tell me how to get there.
There may be some issues, however, with proving the case before ordering the release of the identity, due to international law and the vagaries of its implementation in different countries. For example, if the poster operated out of, say, Seychelles, did they break their country's defamation/libel laws? If not, then can a Netherlands court determine whether the plaintiff has an actionable case?
Say the Netherlands went through a civil trial and agreed to hold the poster accountable in absentia and while the poster's identity was still unknown. If the poster has not broken any of their country's laws, what's the plaintiff to do?
Still and all, it doesn't sound good to be able to gain an order for release of someone's identity based on a simple claim, without having to bear the burden of proof.
I'm assuming here that the only company's records that will be able to be accessed using the court order are those of Lycos-Netherlands ... not Lycos-US or any other branch of the company. If the identity does not reside in that local database, then it seems proper to me that Lycos would be able to deny that the identity is available to the Netherlands court/plaintiff.
For that reason, he held that a plaintiff alleging defamation would have to show evidence of defamation, not mere allegations, sufficient to overcome a defendant's motion for summary judgment.
Let's have a simple example. I write a program and sell it for half the price of my competitor. My competitor makes allegations in various forums that my program contains spyware. Consequently, my sales drop. Who in this forum thinks that I should be denied the right to sue my competitor?
Kaled.
the USA, the name John Doe is used for a defendant or victim in a legal example or for a person whose identity is unknown or is intended to be anonymous. Male corpses whose identity is unknown are also known by the name John Doe. A female who is not known is referred to as Jane Doe. A child whose identity is unknown is referred to as Precious Doe or Baby Doe. Additional people in the same family may be called James Doe, Judy Doe, etc. The jargonized vernacular name is Joe Schmoe
That is, first court proves that, in fact, the person is liable for the damages he/she has done and only then the identity is released and the person is charged.
This is the problem in this case.
treeline's observation sounds best, to me. The Netherlands' decision definitely opens up a can of "this anonymous poster libeled me" worms.
Good. Maybe people will learn to think before they mouth off. This could lead to a tremendous reduction in clutter on the Google Search News and AdSense forums. :-)
The only people who are likely to have a problem with the removal of anonymity are the stupid, the reckless and the malicious.
Kaled.
The only people who are likely to have a problem with the removal of anonymity are the stupid, the reckless and the malicious.
That is so not true. You underestimate the power of law and lawyers. I can go and give a bad review to some online retailer, because I, personally did not like their service. I may have grounds for that - maybe their customer service was rude, or any other number of reasons. The owner can then go on and sue me for my opinion, and claim that my review damaged his reputation? That is nonsense.
I know from personal experience over many years that two makes of hard disk drives are much more unreliable than all the others. But I don't go around posting their names in forums. If someone asks me a direct question such as "Would you recommend drive X" I might reply "I'd choose drive Y, they have a better reputation" I certainly would not say "They're crap - if you buy one it'll probably die within a year".
With a little imagination, you can convey your meaning without risking libel action. Of course, if your own drive X died, you could state this - it is simply factual and factual statements cannot be libelous.
Kaled.
The only people who are likely to have a problem with the removal of anonymity are the stupid, the reckless and the malicious.
I resemble that remark! ;)
But you're right to some extent ... behavior is only libelous if the claims cannot be proved. But could this end up with Ford clamoring for every identity behind every claim of tire failure being the result of manufacturing problems? And then the claimant would need to expend their own money to establish incontrovertable proof and fight the charges?
Seems like it could be a boon to any massive corporation that wants to crush opposing opinion, to me.
I see reviews in forums that are clearly libelous from time time, but I don't see them in magazines. It is very easy to criticize a bad product without being libelous. For example, you can extol the virtues of the alternatives - that's certainly not going to get you into trouble.
Kaled.
ok to say,
From my experience that [hard drive company] is a piece of crap. I don't think anybody should buy them. I wish the company would go out of business. I suggest everybody steer clear of these hard drives at all costs.
not ok, unless I can prove that the following are indeed facts
The [hard drive company] hard drives are garbage. Do not buy them because they break. The company can't last and will go out of business soon.
I bought hard drive X, it failed after two months and the replacement failed after six weeks. I spent half an hour on hold trying to talk to customer services, who, in my case were extremely unhelpful - they insisted that I return the disk to them at my expense and promised to replace it only if their engineers found that there was a manufacturing fault. Eventually, after more phone calls and letters I received a refund for the original price of the disk but not for postage, etc. I cannot recommend this hard disk.
Assuming the facts are true, this is not libelous. Calling Brand X drives crap, etc. and saying that they deserve to go out of business may be libelous.
As I said before, unless you are stupid, reckless or malicious, you need not be worried about this ruling.
Kaled.
After proving that all contact info on the domain was false we reported it to Internic's Whois Data Problem Report giving them proof of the false contact info and proof of the true author of the article and all other pertinent info.
They have a 15 day response time wherein the owner of the site has to respond to the false charges or loose their website. Within 15 days the website came down. It came back up a few weeks later but this time it had the true contact name on it.
