Are bloggers fair game?

The English High Court has given some useful guidance as to when disclosure may be ordered of the identity of individuals contributing to online discussion forums

The Journal, December 2007, page 43

Most of us now, both personally and professionally, spend increasing amounts of time online and frequently rely on online information. We can access numerous wikis for immediate information, or read and post entries on web blogs or discussion sites. All of this creates new legal challenges, including identifying who is liable for infringing or defamatory material being posted online and how the real physical identities behind pseudonym postings can be found and pursued. A recent decision of the High Court in Sheffield Wednesday Football Club Ltd v Hargreaves addresses such issues, and gives guidance as to when a UK court will order the identity of an online user to be revealed, as well as suggesting steps that website owners may take to try to further protect the privacy of their users.

The defendant owned and operated a Sheffield Wednesday fan discussion website, owlstalk.co.uk. The dispute centred around postings made by disgruntled fans, which the club’s chairman and directors argued were defamatory as they alleged they were incompetent and had mismanaged funds. On a lighter note, they also took objection to the suggestion that they could not tell the difference between a rugby hooker and a football striker! Not surprisingly those posting comments had used pseudonyms/online aliases. As a matter of fact the only person who could access their full names and email addresses was the defendant. The claimants asked the court to order the defendant to reveal users’ identities so that they could pursue actions against them.

Factors in the balance

In considering such requests a court must weigh up issues of privacy, data protection and freedom of expression against the right to take effective legal action against defamatory comments. That exercise involves assessing the gravity and extent of the allegations, i.e. were they part of a concerted smear campaign; the extent and makeup of the site’s readership; and whether the claimants had any alternative practical means to identify the wrongdoer.

In this case the judge decided to order the defendant to reveal the identities of those users who he considered had posted material which made serious allegations of “untrustworthiness and dishonest behaviour”. For such material the protection of anonymity and freedom of expression was outweighed by the right to take effective action to protect reputation. Interestingly, consideration was also given to the website’s terms and conditions of use, which all users had to accept before they could join any online discussions. These terms, which prohibited the use of any defamatory language on the discussion boards, had potentially been breached by those users. Notably the site had no blanket policy of confidentiality for the benefit of users. How many users had actually read and considered the legal impact of such conditions is doubtful, but as a matter of law they can be considered as part of the balancing exercise.

Wakeup call

It is important to note that the court refused to order the disclosure in respect of postings which, whilst considered to be defamatory, were trivial or “little more than abusive or likely to be understood as jokes”. Thus, there is no guarantee that an order will be granted in all cases and the decision does not afford carte blanche to obtain effective relief against what may be actionable defamatory material online.

However it does serve as a wakeup call to all online users that the law is not getting left behind by advancing technology. The expectation of privacy will not always be upheld as paramount, and ultimately a user can be held liable for their online postings – whether intended to be witty or not!

That said, the tide has not yet fully turned in favour of a presumption of disclosure and it is likely that web owners will continue to refuse to make voluntary disclosures for fear of breaching data protection and privacy laws. That could conceivably change if a number of cases follow this ruling and set a standard in favour of revealing identities in similar cases. In the immediate future, website operators may also wish to review and tighten up their terms of use to adopt a broad confidentiality policy, in an effort to rely on that to potentially protect users in future.

On one view some users got away with it here, but in an environment where brand owners and corporations increasingly monitor online activity, the old adage of “think before you click” is a mantra not to be forgotten.

Robert Buchan, Maclay Murray & Spens LLP