Magnífico artículo sobre la Libertad de Expresión y el Anonimato

por David Fernández Mena

publicado el 30 agosto 2007

Categorías: General / Intimidad / Jurisprudencia

Es sobre ley y jurisprudencia en EE.UU. pero similares criterios se estan manifestando en otros tribunales y textos legales, como la misma Ley de Retencion de Datos 🙁 , ademas de que debe tenese en cuenta la globalidad de la red y que, en un descuido…

INTERNET LAW – The Right to Speak Anonymously on the Internet is not Absolute

Martha L. Arias, IBLS DirectorT hursday, August 30, 2007

The First Amendment of the United States (US) Constitution protects freedom of speech and sufficient case law extends this Constitutional right to Internet speech. Yet, just as the freedom of speech, Internet speech is not absolute. Most US Courts are ruling against tortious and criminal Internet speech, after a cautious balance between freedom of speech and privacy rights. Due to its nature, Internet communications seem to constantly involve forms of expression that intermingle with privacy issues in cyberspace. Even though the US freedom of speech protects many forms of expression (oral, written, symbolic, etc), the US Supreme Court has prohibited or limited some forms of expression. The US Supreme Court banned or limited the following forms of expression, (i) Libelous Speech [New York Times Co. v. Sullivan, 376 U.S. 254 (1964)]; (ii) Fighting Words [Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942)]; (iii) Commercial Speech [Pharmacy BD. v. Va. Consumer Council, 425 U.S. 748 (1976)]; Obscene Speech [Miller v. California, 413 U.S. 15 (1973)]. In most Internet speech cases, the US Courts seem to be sending a clear message: Internet is not going to be become an unregulated platform for banned or limited forms of expression. For instance, in Polito v. AOL Time Warner, Inc., 78 Pa. D. & C.4th 328 (2004), the court held that the right to speak anonymously on the Internet is protected by the First Amendment. Yet, this right is not absolute; any anonymous Internet speaker that involves in tortious or criminal conduct may be made, by a Court of law, to answer to such transgressions. The Court holding says: «The First Amendment is not intended to protect unconditionally all forms of expression. Clearly those people who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court. But, if an anonymous Internet speaker engages in tortious or criminal conduct, the protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions.»This case involved an anonymous Internet speaker who sent harassing, pornographic, embarrassing, insulting, annoying, and confidential electronic communications to the recipient via the Internet. The receipt filed an action against the Internet Service Provider (ISP) requesting the ISP to revel the anonymous speaker’s identity. The Court granted the recipient»s request and ordered the ISP to provide the identity of the anonymous (an annoying) Internet speaker. In Polito v. AOL, the Court had to balance the scope of the anonymous Internet speaker constitutional freedom of speech and privacy rights v. the recipient’s rights. Most US court will engaged in this balancing test before forcing an ISP to reveal the identity of an anonymous Internet speaker (remember, getting the anonymous speaker’s identity is the first step to make that speaker accountable for any wrongdoing or banned speech), and most of the decisions are consistent with the decision in Polito v. AOL. Hence, this balance test may provide different results when the anonymous Internet speaker is just a third party to the underline and prospective litigation.Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088 (2001) is an example of an anonymous Internet speaker whose identity was not ordered revealed after this freedom of speech/privacy balancing test. The shareholders of 2TheMart.com sued the company and its officers alleging fraud on the market. The plaintiff -shareholders- sought a subpoena ordering an ISP to reveal the identity of 23 speakers who participated anonymously in Internet message boards. These area examples of some anonymous messages, «TMRT is a Ponzi scam that Charles Ponzi would be proud of. . . . The company’s CEO, Magliarditi, has defrauded employees in the past. The company’s other large shareholder, Rebeil, defrauded customers in the past;» «they were dumped by their accountants … these guys are friggin liars … why haven’t they told the public this yet??? Liars and criminals!!!!!.» The plaintiffs’ purpose in obtaining the identity of these Internet speakers was to prove their case against the company and its officers. The court refused to order the ISP to reveal the identity of the anonymous Internet speakers. The court was concerned with the freedom of speech of those anonymous Internet speakers who were not parties to the underlying litigation. This Washington court established a new test for those cases involving subpoena to ISP regarding anonymous Internet speakers who are not parties to the underlying litigation. The court will consider the following: (1) «the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.»»The Court shall give weight to each of these factors as it determines is appropriate under the circumstances of each case. These factors are a high burden.» Thus, anonymous Internet speakers may expect to be subject to the same freedom of speech limits established for traditional forms of expression. Additionally, they may be accountable for tortious or criminal speech if their identities are revealed by the ISP, through a subpoena order issued after the court balance freedom of speech and privacy rights. Hence, those same anonymous Internet speakers may have some form of defense or protection when they are not direct parties to an underlying litigation.[Reference 1][Reference 2][Reference 3]

Internet Law – The Right to Speak Anonymously on the Internet is not Absolute