The Toronto Sun
Wednesday, August 5, 1998

Truth or consequences

A recent court ruling threatens to put an end to anonymity in cyberspace

by Ian Harvey, connect@sunpub.com

[Free Speech] Free speech is a funny thing.

It turns out that speech isn't free at all, especially in the insular world of cyberspace.

Philip Services is a case in point. Philip is a Hamilton-based recycler and a publicly traded company with about 14,000 employees. It found itself mired in controversy when US$200 million in accounting discrepancies surfaced and it quickly became the subject of chat groups as its stock plummeted.

It wasn't just the discussions in the chat group, it was the nature of the words. Allegations flew fast and furious, posted by mostly anonymous sources.

Philip went to court, charging the postings were tantamount to stalking, saying some of them included death threats and constituted harassment of executives and employees.

It demanded and won a court order requiring Internet service providers to reveal the names of those posting to the site.

But what was unusual was the way it was done. Philips went to court ex parte -- in other words, without the other parties present -- and secured the order without even having to prove the allegations were untrue or that the company had suffered any real damage.

"I think this is an example of the gulf between the old guard, the judge, and the online community", said David Jones of the Electronic Frontier Canada (www.efc.ca). "It says it you are an important person or a company with a reputation, you can get an ex parte order."

Free speech isn't really the issue, he said. Any company that doesn't like what has been written about it can sue for libel, he said, whether the media is print or the Internet.

David Johnston, a McGill University law professor, chair of the federal Information Highway Advisory Board and co-author of the book Cyber Law: What You Need To Know About Doing Business OnLine ($22.95, Stoddard), also says the ruling wasn't that shocking.

In a way, he said, it's a wake-up call for the online community, that as it enters mainstream culture, there are consequences and responsibilities that must be recognized with the coming of age.

As Jones and Johnston point out, if a print medium were to use anonymous sources, then the court would doubtlessly order the names revealed.

More troubling, though, is that the company went to court on the Q.T. and secured an order without the ISPs involved being able to make arguments. As critics note, it's tantamount to a court-endorsed fishing expedition.

Of course, legal battles are notoriously expensive. The merest hint of legal action by a deep-pockets adversary is enough to make many people fold their tent.

That's just what happened when Toronto Stock Exchange critic Porter Davis was forced to throw in the towel.

Davis, a stock market veteran, had been vociferously offering his opinion on Silicon Investor (www.techstocks.com) and questioning the leadership of TSE president Rowland Fleming. The TSE responded by firing off a letter putting him on notice that his comments could be construed as libelous.

Another case last month involved an Internet site posting worker gripes about The Orange County Register. It was abandoned after the newspaper sued for trademark infringement and successfully subpoenaed America Online Inc. for the names of those who created it.

Turning the big legal guns on Internet postings, I think, smacks of overkill. Few people take what they see on the Net as gospel. As the journalism adage says: Consider the source.

This issue isn't over yet. Canada's largest internet service provider, PSINet Inc., and its subsidiary, iStar Internet Inc., which initially complied, now says it's having second thoughts, said president and CEO Nadim Desai after launching a legal challenge.

"I think the point is that the old rules don't apply anymore", he said. "This is uncharted territory."

Clients, he said, have a right to privacy, and their ISPs should protect that right -- or at least be allowed the opportunity to argue their case before blanket court-orders are made.

In the meantime, anonymous posters might want to avail themselves of upgraded stealth technology before they let their fingers do the talking again.

Copyright © 1998 by The Toronto Sun. All Rights Reserved. Reprinted with permission.