NOWHERE TO HIDE...
The Internet can be a faceless forum, where users can hide behind fictional characters or even appear to be completely anonymous.
Whilst in most circumstances anonymity will be harmless, sometimes users mask their identity so that they can make defamatory comments about people they do not like or post reviews or content promoting their business without making it clear that they are connected. Whilst this might seem like a good idea, many will not realise that there are ways of tracing people’s identity even when they use fake details to set up accounts with social networking and product review websites.
Norwich Pharmacal Orders
Most people think that you can hide behind anonymity when posting defamatory, private or infringing material on the Internet. However, what they do not appreciate is that it is possible for a claimant to obtain a Norwich Pharmacal (disclosure) order against an ISP or website operator, provided certain legal tests are met, ordering them to disclose information about the poster. Anonymity is not always the defensive shield it might appear to be at first glance.
Say, for example, a person posts a defamatory comment about you on a social networking website. That person will have had to enter certain information about themselves to set up the account with the social networking website, such as their name, email address and contact details. A Court can order the website to disclose that information so that you can take action against the person who has defamed you. Even if the person has been cunning enough to use false information to set up the account, the website operator will usually know the IP address of the computer that was used to create the account or to upload the illegal content. That IP address, along with the time and date of the user’s activities, can then be traced to the person who was assigned the IP address by an ISP (often requiring another Norwich Pharmacal order from the Court). Whilst there will be some instances where a person cannot be traced (e.g. it is more difficult if they are using a computer in an Internet Café), in many instances the person will be traceable. But there are of course no guarantees that you will find out who wrote the post.
The position in the USA is less claimant-friendly, with a number of state courts holding that the right to free speech in the First Amendment requires additional protection for posters to be able to speak anonymously. In the USA, the claimant faces the higher burden of giving the anonymous poster notice of the claim, an opportunity to defend it and establishing a prima facia case of libel, i.e. the claimant must do more than just state a claim, there has to be factual support. Even if these requirements are met, the Court will still balance the equities to see if disclosure is warranted.
The practice of posting fake reviews about your own business or product (a.k.a. astroturfing – read our article for more analysis) has become more talked about over the last year or so. There was media coverage of the revelation that a London historian and author had posted anonymous reviews on Amazon which criticised his rivals’ works and praised his own.
Astroturfing is not only unethical but is also probably illegal. Under the Consumer Protection from Unfair Trading Regulations 2008, "falsely representing oneself as a consumer" (in the context of promoting a product to consumers) is deemed to be an unfair commercial practice which amounts to a criminal offence, the maximum penalty of which is 2 years imprisonment and/or an unlimited fine. However, the PR consequences can often be worse than the legal ones. It might seem like a good idea to post an anonymous glowing review, but if you get caught, the PR damage can be immeasurable.
Tripadvisor has faced criticism that it does not do enough to guard against astroturfing by authenticating consumer reviews and is being investigated by the ASA (as at 20 October 2011) following thousands of complaints from hotel owners about allegedly misleading and false reviews. Tripadvisor has reportedly started scanning for reviews sent from hotel IP addresses in an attempt to crackdown on fraudulent reviews. However, this method is not fool-proof as an hotelier reportedly threatened legal action when she saw a huge drop in bookings after her hotel was "red-flagged" by Tripadvisor when the hotel’s IP address was spotted after a guest allegedly posted a review using Wi-Fi at the hotel.
It can be hard to tell when a celebrity or blogger is praising a product because they have been paid to praise it, or because they genuinely like it. However, advertorials (using editorial content in the media to promote a product when the trader has, in fact, paid for the promotion without making it clear that it is a promotion) are also banned by the Consumer Protection from Unfair Trading Regulations 2008 and the CAP and ASA Codes.
This issue was recognised by the OFT, which conducted an investigation in 2010 into Handpicked Media, the operator of a network of bloggers and niche websites across a variety of sectors. As a result of that investigation, Handpicked Media signed undertakings agreeing not to engage in promotional activity unless bloggers within its network prominently disclose, in a manner unavoidable to the average consumer, that the promotion has been paid for or otherwise remunerated (see here).
The OFT’s investigation confirmed the view that online advertising and marketing practices which conceal the inclusion of paid-for promotions are deceptive under fair trading laws. Therefore, companies and celebrities need to be transparent about any paid-for promotions.
Hiding behind the faceless nature of the Internet can seem attractive to a person who wants to criticise a rival or praise themselves. However, not only might this be illegal and/or a PR disaster, but the anonymity which seems so attractive can often be displaced. Given the potential consequences, trying to hide your true identity is likely to be more trouble than it’s worth.
"People who hide behind anonymity often don't realise that they can be traced and that, if they are found out, their actions could come back to haunt them."
"Hiding behind the faceless nature of the Internet can seem attractive to a person who wants to criticise a rival or praise themselves."