From: cigs13@vaxa.strath.ac.uk
Newsgroups: misc.legal.computing
Subject: One response to Pseudonymity online - anyone want to argue "Nuisance"?
Date: 8 Jan 93 11:45:44 GMT
Organization: Strathclyde University VAX Cluster


X-News: str-va misc.legal.computing:1509

>From: mkj@world.std.com (Mahatma Kane-Jeeves)
>Subject:Legal question re pseudonymity online
>Date: 7 Jan 93 23:52:52 GMT
>Message-ID:<C0ID04.1Ey@world.std.com>

>Let me pose a hypothetical case.  On his way home from work one 
>evening, John Q. Publius stops at a newsstand and buys the latest 
>edition of his favorite quarterly journal, the Entire World 
>Redux.  Inside, he finds an unobtrusive but inviting ad for an 
>electronic conferencing system called The BELL.  
>
>When he arrives home, he powers up his home PC and applies for an 
>account on the BELL.  He informs the BELL's administrators that 
>he would prefer to use a pseudonym, and not reveal any personal 
>information about himself on-line.  But the administrators deny 
>his request, stating: 
>
>     "Since the BELL makes it clear that users are responsi-
>     ble  for  what they post on the BELL, we  think  it  is 
>     important that they be identifiable."
>
>With a sigh, John proceeds to become a regular BELL user and 
>contributor under his real name.
>
>Some time later, John participates in a debate on the BELL, 
>taking a clear stance on a very controversial issue.  A lurking 
>rabid fanatic with emotional problems takes silent exception to 
>John's comments, gets John's name from a message header, and 
>somehow finds John's address and phone number.  He makes phone 
>calls to John's answering machine, quoting from John's messages 
>on the BELL and threatening retaliation; later he drops by John's 
>house and lobs a molotov cocktail in through the window.  John's 
>house is badly damaged, and John is injured, suffers great pain, 
>loses income and requires expensive medical treatment.
>
>Infuriated and in desperate need of financial help, John sues the 
>BELL.  My question:  Does he have a case?
>
>Suppose John can show that although the BELL management denied 
>pseudonymity to most users, they granted it to certain people 
>such as celebrities or others with special status.  Would this 
>strengthen John's case?  Could he argue that if the BELL takes 
>upon itself the authority to decide who may or may not protect 
>themselves with a pseudonym, they must also accept at least 
>partial responsibility for the consequences?
>
>Suppose John can show that other BELL users have previously 
>suffered defamation, harassment or other problems as a result of 
>real-name exposure on the BELL, and that BELL management was 
>aware, or should have been aware, of at least some of these 
>problems.  Would this strengthen John's case?
>
>I realize that these questions may not have clear answers at this 
>time, but I am looking forward to informed speculation.
>
>                                   ---  mkj

Barring the application of any applicable statutes and looking at the common
law tort position only, I would tend to support Bell in denying responsibility. 
The general argument would be that Bell would not be liable in contract unless
they have explicitly assumed the liability (very unlikely - if however they had
undertaken to maintain John's privacy and failed to do so then a contract claim
could be brought) (and indeed the
contract argument is likely to be the other way around - can Bell exclude
liability for negligence by contract - in the circumstances described the
answer would be no, leaving the question in tort as follows) - and that Bell
would not be liable in tort for negligence (though by adding in facts as you
have in the penultimate paragraph this conclusion may begin to require
revision).  Negligence requires a duty of care and a lapse, which is proximate
to the injury.  The general rule is that Bell is not responsible for the
fanatic described as his/her acts are an intervening cause.  (A real problem
might arise if the fanatic in question was known to Bell or indeed employed by
Bell and was granted access to the net despite it being foreseeable (by Bell)
that he would act in this way.)   Beyond this the plaintiff's role must also be
considered - if John was provocative he might be thought partly to blame for
his own misfortune.  

The nub of the question is whether it is Bell or John who is providing John's
address.  An E-mail service is an exchange, like the post office or the
telephone, and is likely to have obligations imposed by statute in addition to
the common law duty of care.  However (unlike the situation of say a letter
bomb) it is not the media of exchange which is carrying a damaging device
(though such an exchange might be responsible, e.g. if the damage was to a person's reputation by
a libel) but rather furnishing - at John's choice - information used to deliver 
the cause of the damage.  

Now to my mind the situation so far as is presented is much like that where I
write a letter to the editor of a newspaper (with a policy that letters asking
for name and address to be withheld will not be published). As my name is
uncommon, it is not difficult for A.Fanatic to precisely identify me simply
from the Glasgow phone book.  Do I sue the phone company? or indeed the
newspaper?  |IMHO I would be out of luck...


-- 
This E-Mail Message has been sent by:
					Adam Gilinsky, Co-ordinator
                                        Centre for Law, Computers & Technology
					"Research at the Leading Edge..."
-- 
This E-Mail Message has been sent by:
					Adam Gilinsky, Co-ordinator
                                        Centre for Law, Computers & Technology
					"Research at the Leading Edge..."
Newsgroups: misc.legal.computing,misc.legal