Dya ken, John Doe

Iain Dale is looking for a bit of advice:

Just a warning to those ‘anonymous’ commenters who think they can say anything they like on a blog and get away with it. Well you can’t. I’ve always maintained that anyone on the internet is subject to exactly the same laws as anyone else, and just because you post anonymously, that doesn’t mean that you can’t be traced.

The Guardian carried a very revealing report today about a case involving a football website where fans of Sheffield Wednesday expressed their views on the owners of the club in a libellous fashion. The Chairman, Chief Executive and five directors of the club have won a High Court ruling forcing the owner of the Owlstalk website to reveal the identity of those accused of libelling them. It’s worth reading the whole article HERE but here’s an extract…

This ruling has huge implications for blogs and websites and may well force us all to introduce full registration. If there are any libel lawyers reading this, do give us your take on this ruling and how it may affect blogs like mine!

Iain Dale – 22 October 2007

Let’s deal with the practicalities first.

From what I recall of how blogger works, its highly unlikely that Iain would be unduly affected by the ‘John Doe’ ruling in the Owlstalk case, as the system gives Iain relatively little information that would be of value to a would-be litigant.

Blogger comments do include an e-mail address, which is easily obtained but may or may not be fake as there are no verification checks carried out (and even if there were there’s no guarantee that the commenter hasn’t used a disposable web-mail box or an anonymity service like Hushmail), but the system does not, as I recall, give blog owners access to IP address information which is a somewhat more reliable means of tracing a commenter – and even that can be faked if you have the technical know how and the right software.

Things are a little different if, like me, you host your own blog and have access to rather more information about commenters (like IP addresses) – this is where Owlstalk appears to have been caught out, as the forum is actually hosted by a Florida-based company and uses the Invision forum platform (and requires all users to register) – but perhaps the main issue that’s specific to this question is highlighted by Tim Ireland:

– Those running anonymous weblogs and/or poorly-regulated weblogs that allow for repeated anonymous smears ‘jokes’ will want to take a long, hard look at the costs accrued in revealing the identities of those involved. There are ways of retrieving historical comment-related IP data from months back that you may not even be aware of, and most of them are extremely expensive.

Pretty much all hosting agreements include a specific clause to the effect that you – the blog/forum operator – agree to indemnify the hosting company against any legal and related costs they may incur as a result of your actions in using their service.

I have to say that I can’t recall seeing a situation in which this clause was actioned, but in most, if not all cases – the legalese is pretty much standard across the industry – a blogger/forum operator will have signed a contract with their host stating clearly that you agree to cover their costs if, for example, they have to go rooting around in several months worth of server logs to comply with a court-issued ‘John Doe’ order.

Of course, if you do host you blog on blogger, then your one saving grace is that to obtain such an order for IP address information your would-be litigant would have to take on the high-value legal muscle available to Google and, very possibly, would have to do so in the US courts as well. At the very least, anyone trying to obtain a John Doe order over Google in the UK courts might well expect a long and expensive legal fight over jurisdiction before getting to make their actual case.

It’s also worth noting that the Guardian’s chosen headline – ‘Warning to abusive bloggers as judge tells site to reveal names’ – is rather misleading on two counts.

First, Owlstalk is a forum not a blog and the technical differences between the two platforms can make a significant difference to the extent to which the owner is able to comply with a request for information about the ‘identity’ of a commenter.

Second, comments that are strictly abusive – and especially those using vulgar abuse – are not generally held to be libellous, as the Judge in this case correctly observed:

But the judge decided some fans, whose postings were merely “abusive” or likely to be understood as jokes, should keep their anonymity.

The judge ordered that three fans whose postings might “reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour”, should be unmasked. Their right to maintain their anonymity and express themselves freely was outweighed by the directors’ entitlement to take action to protect their reputation, he said.

You can quite safely call someone a cunt without fear of litigation, but call them a corrupt cunt and you’re in very different territory.

Getting on to the footballing aspects of this case, I’m not exactly surprised at the nature of the allegations which the directors of Sheffield Wednesday objected – such comments are actually fairly commonplace on football forums (and in the local pub) and stem, more often than not, from the failure of many supporters to understand the complexity of the financial side of the game.

A typical scenario that tends to spawn these kinds of comments is one in which a lower division club sells its star player to raise money, with the result that what the fans see is the headline on the BBC or Sky that tells them that the player went for a transfer fee of, say, £3 million.

Fans, who care passionately about their club, quite naturally want to see such players replaced when they are sold and, unfortunately, all too often assume that a quoted £3 million transfer fee means that the club has actually received £3 million, money that they expect should be made available to the manager to enable them to strengthen the team.

The reality, as you might well expect, is very different.

Out of our illustrative £3 million transfer fee, the Football Association will take a registration fee. The player with receive a percentage of the fee (10%, IIRC) plus, depending on the circumstances, they may receive a ‘loyalty payment’ if the transfer is instigated by the club rather than by the player asking for a transfer. And, of course, there’s the agent’s fees to be paid as well.

Oh, and let’s also not forget that the tax man gets his rake as well.

Then there’s the question of whether the £3 million headline fee is actually £ 3 million – one of the increasing trends in football is for transfer fees to include structured ‘bonus’ payments based on how well the player performs at his new club, which means that part of the headline figure could be made up of additional payments that are contingent on the player appearing in a certain number of game for their new club or achieving international recognition or the new club gaining promotion.

In addition, very few such deals involve payment of the entire fee up front – most are structurd over 2-3 years, so the selling club might actually only receive a third of the money up front.

And lets not forget that its not always clear to fans exactly why the player is being sold. The selling club could be selling to get into the market for new players, or they could be looking to finance an investment in stadium or other facilities, or they could be trying to reduce the amount of the club’s debts, or they could even be looking to plan ahead a put money by that can be used for transfers during the next transfer window.

All that is possible, even likely, and yet in the eyes of some fans all they see is what appears to be £ 3 million going in to the club and if that same amount of money is not then spent on new players then it must automatically be because the club’s directors are being greedy and using the money to line their own pockets by paying themselves dividends that they don’t deserve – and that’s where the moaning starts.

In situations like this there are two side to the argument. On the one side, the directors of Sheffield Wednesday clearly feel that they are unfairly being labelled as dishonesty and mendacious by some fans and that this is damaging their personal reputations and standing.

On the other, football clubs are not, by their very nature, like most other businesses. Fans have an emotional investment in football, and in the team they support that you simply don’t find in other walks of life – no one gets upset if Coca Cola sells off a subsidiary part of its business and doesn’t reinvest the money in a new flavour of Coke.

With the growth of football as a business has come tensions between supporters, for whom results on the field are what matter, and investors for whom results on the balance sheet are what count, and there are also in-game sensitivities about transfers and transfer budgets – its well known in the game that a £1 million player will suddenly become a £1.5 million player in the eyes of a selling club if the prospective buyer has recently sold a hig value player or two in the transfer market.

Nevertheless, the solution to such problems lies not in litigation but in greater openness and transparency around the financial aspects of the game and clubs (and directors) forging better relationships with fans and supporters clubs. The directors of Sheffield Wednesday may succeed in using legal methods to silence their critics but only, I suspect, as the cost of losing the respect of many of their fans, and it remains to be seen whether that will, in turn, be reflected in lower attendances and less money through the turnstiles.

Getting back to Iain and his warning to anonymous commenters on his blog, notwithstanding anything else that I’ve said, the position in law that Iain faces is no different to that which has been explored by several bloggers in the wake of the Usmanov issue. UK libel law hold ISPs, webhosts, forum owners and bloggers liable not only for their own content, but for anything they ‘publish’ up to, and including, anonymous comments. It all very well issuing ‘warnings’, as Iain has done, but in doing so he rather misses the point that its only by virtue of the largesse of the litigants in the Owlstalk case that it appears that they’ve chosen to pursue claims against a small number of specific members of the forum, when  they could just as easily – more easily, in fact – have pursued the owner of the forum.

Although, in this specific case, I suspect that merely ‘outing’ the individuals responsible for the allegedly libellous comments on Owlstalk and obtaining apologies/retractions and promises of future good conduct may be as far as it goes – its doubtful that any will be worth pursuing for damages – it remains the case that even full registration and cooperation in identifying anonymous commenters is no defence under the current law such that if someone did take offence at such a comment on Iain’s blog, it could still be Iain who would find himself in court.

  • Jherad

    Great post. I was a little curious as to why they chose to go for the commenters rather than Owlstalk directly – perhaps they were more interested in identity than damages.

    Tim made an interesting point about seperate abusive comments. Though the judge only ordered the of authors of specifically actionable comments to be identified, what about comments which were considered only ‘abusive’ but may have been written by the same people. Do they not have any bearing on the case?

    To put it another way, and using your own example, in law is calling someone ‘corrupt’ as bad as calling them a ‘corrupt cunt’? Does systematic abuse affect the gravity of libel, though not considered libellous itself?

  • Does systematic abuse affect the gravity of libel, though not considered libellous itself?

    Difficult to say and likely to depend on how the case is heard – a jury is optional in libel cases if both parties agree to the case being heard by a judge sitting alone – and on what directions, if any, are given by the judge in his summing up if it is heard by a jury.

    The abusive element has no bearing in law on whether a statement is libellous or not, but could come into the reckoning in determining whether or not a libellous statement was made with malice, in which case it could have some bearing on the amount of damages awarded.

  • Dan

    Even full registration is technically speaking not enough, combining a disposable email address with TOR would let you register and post completely anonymously.

  • Jherad

    Right Dan – and I suspect if it was impossible for the commenter to be traced, it would be more likely for the libel to land completely on the blog owner’s lap. I think there’s something concerning the ability to moderate comments placing an obligation to do so from some precedent or other. I might be mistaken.

    If an unknown person sprays libellous graffiti on a building, is the owner culpable? Before or after he refuses to clean up? 🙂

    Wikipedia doesn’t allow TOR users to edit entries at all, though more to prevent circumvention of lockouts by banned users than anything else. Ultimately a blog owner is responsible for comments.

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