Online hiding holes vs the law

VideoProfessor sells computer training videos, mostly through late-night infomercials. Like most companies, it offers a money-back guarantee, but there seem to be endless problems with overcharges, upsells and unclear terms. Some customers got a little fed up and posted anonymous, negative comments on websites such as Infomercialscams.com.

VideoProfessor did not take kindly to this, and was able to get a subpoena to obtain the IP addresses of the anonymous posters. According to United States law, VideoProfessor cannot sue the owners of the site where the negative comments were posted, but apparently it can sue individual posters.

Infomercialscams.com is fighting the subpoena, based mostly on the fact that

“anonymous, critical speech is generally protected by the First Amendment, and the threshold for unveiling anonymous posters is high”.

Also, it is not illegal to post negative comments. It is only illegal to post negative, false comments.

VideoProfessor takes a different stance. Founder John Scherer told the Denver Post:

“I personally do not believe that you can be anonymous and bash people and get away with it under the First Amendment. I will stay with this case, and I will get the names that I am requesting. I will pursue this until the Supreme Court tells me I can’t get them.”

So the battle is such:

Infomercialscams.com is saying its anonymous posters need to be protected (at least for now), because it has not been proven that any of their claims are false.
VideoProfessor claims that they need to know who the posters are, before they can prove that the claims are incorrect. To that end, VideoProfessor is confident that that the anonymous posters are competitors who are purposefully defaming its reputation. And it wants the right to put a stop to that.

I, for one, am going to be watching this one closely. Although this seems a solely US case, we don’t know for sure. How would VideoProfessor handle a South African anonymous poster? Could it sue? Would it bother? All this is still murky ground, and courts are likely to look at precedence for direction.

There are also two important points to take out of all this:

The first thing to note is that what you have always suspected is, in fact, true: you are not anonymous on the web. This is important to remember if you are trying to do something illegal (like bulk email or a phishing scam) or if you are trying to keep your legal self safe (by, for example, participating anonymously in a chat room).
The second thing is that if you are a victim of an illegal online act, there is recourse for you. The fact that someone hides behind a curtain of anonymity does not spell the end of the road for you and your rights. Also, if someone does not bother to hide, but tarnishes your reputation with false claims and uses the free-speech banner as an excuse, all is not lost.

South Africa had its small drama recently when Guy McLaren felt that his reputation was being negatively affected by various posts in the blogosphere. As soap operas go, it was a fun one to watch from a distance, but it did not go as far as to set any precedence.

My friend Paul Jacobson is a South African lawyer whose specialty is new media, which pretty much covers all of the above. (He was also personally involved in the McLaren fiasco, and his blog makes for very interesting reading.)

As I have said to him, it is an exciting time to be a lawyer, because how often do you get to carve a new niche for yourself and be directly involved in writing the rule book?

He reminded me that “to live in interesting times” is a Chinese curse!