Media companies frequently receive demands to remove inappropriate content, posted by users, from their websites. It may be the case, for example, that it has been alleged that a defamatory statement has been posted and the affected person requests that the post is taken off the site. However, companies are now facing increasing demands to release the identity of persons who anonymously post information on their site. A person affected by defamatory statements may require the information to pursue a court action or authorities may seek the information in connection with a crime. So what are the rules regarding disclosure? Is it possible for companies to be forced to disclose the details of an anonymous poster?
When an initial request is received, companies should bear in mind that, if you disclose personal information in breach of your terms and conditions, you could be sued for breach of contract. Companies should also be aware of data protection law. If there is not an exception under the Data Protection Act 1998 allowing disclosure of a user's personal information, one such exception is where the information is required by the police in connection with a crime, companies may find they are in breach of the Act by disclosing the personal data of a user.
Where the matter has progressed to court, the UK position thus far is that courts must not make an order for disclosure where such disclosure would unjustifiably invade an individual's right to respect for their private life. This very much depends on the circumstances of each case but it seems that where there is a genuine requirement for the information in order to pursue a court action, the court will generally order disclosure.
In the US, where such cases arise more frequently, the view has been taken that a person's choice to remain anonymous is an aspect of freedom of speech. The test which must be overcome for disclosure is high as there is the danger that if a person's identity is easily obtainable, it would inhibit free speech on the internet. Whether freedom of speech now becomes an argument for non-disclosure in the UK remains to be seen.
Although the reasoning is different, in both the UK and the US, the current position is that disclosure of an individual's identity can be ordered by a court where a potential claim has factual and legal merit. Individuals should therefore remember that being anonymous on the internet does not mean that you will avoid disclosure and liability for your comments, and companies must be aware that despite policies on keeping your customer's data private, you may in certain circumstances, be forced to disclose it.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.