Developing rules on online anonymity

When I first started my schooling as a pre-law student at the University of the Philippines at the age of 14, I remember that I used to receive letters — not offensive ones — in fact, they were very complimentary, signed “Ang Pulubi (The Beggar).” I have never found out who this anonymous sender was. I remember having told my parents about it because I felt annoyed, and they told me it was part and parcel of student life, with boys to contend with now.

Fortunately, the Internet had not yet been born.

As a professional in government, I remember receiving anonymous death threats and even rape threats. They did not scare me. I had been appointed by then President Corazon C. Aquino to be concurrent acting chairman of the powerful National Telecommunications Commissions (NTC) while maintaining my Undersecretary (Usec) for Communications position, and the presidential directive was to do a cleanup job at the NTC. This was also the time when we commenced the de-monopolization and liberalization of the telecommunications sector.

Licenses and authorizations were issued to the new enfranchised carriers pursuant to this, which received an even greater push and encouragement from the successor of President Aquino, former President Fidel V. Ramos.

Anonymous letters and “white papers” proliferated under some so-called “dirty tricks” sources, but this time, I took everything in stride as part of the job.

The NTC has always been an underestimated regulatory agency. It, however, is an extremely powerful quasi-judicial body that, in fact, had the power, after due notice and hearing, to allocate that most valuable, scarce and finite resource of the country — the frequencies in the radio spectrum that empower the communication lines, radio and television to operate.

Because the values involved in the petitions before the NTC were huge amounts, I, as chairman, made it a collegial body with my two deputy commissioners, though not mandated by law. Previous NTC chairmen before me had used the one-man signing affair, which, of course, was their privilege, not having been mandated by law.

My two deputy commissioners — Farley Ampil, Aloysius Santos and Lou Dumlao — and I always achieved a consensus. It was at this point when my twin offices of NTC chairman and Usec for Communications received a lot of anonymous letters attacking the technical and financial competence of their prospective competitors.

After two years of rushing back and forth from my NTC and DOTC offices, and after accomplishing, to the best of our abilities, the issuance of the new authorizations to the new carriers, the NTC chairmanship was given to a gentleman who reverted to the one-man signing process, as did his successor. Then followed a lot of anonymous letters about the situation that reached my desk as the Usec for Communications.

One great day, however, that still remains fresh in my memory, is when the Supreme Court of the Philippines categorically mandated the collegiality of the quasi-judicial regulatory body that was the NTC. They were not anonymous letters that flooded my desk this time — they were signed letters of congratulations, some probably coming from those who had previously sent anonymous letters to me. To the officers and staff that helped me through those years, I also would like to pay tribute.

I have always considered, anyway, that anonymous letters are part of a person’s freedom of expression. Anonymity falls under the above-specified freedom although, to my mind, the sender lacks the virtue of courage. It is possible all they want is to malign, defame and threaten under the coward’s cloak of anonymity.

Can you imagine if the Internet had already been born then! And can you imagine how online anonymity could multiply and magnify!

It is clear today that efforts to compel the unmasking of anonymous Internet postings have risen to that level of an issue of constitutional proportions, where subpoenas in civil suits are being quashed on free speech grounds, and where efforts to unmask Internet postings, whether they’re parties to a lawsuit or not, are being balanced against the right to remain anonymous.

Important new laws and regulations are being enacted on this issue all over the global world, so that drawing a conclusion on when anonymous posters can be unmasked and when they cannot is becoming more difficult. Still, there are some standards that are emerging or have emerged as guidelines for would-be plaintiffs and online posters alike.

Plaintiffs cannot use the court’s subpoena powers to go on a fishing expedition or as a technique to silence opposition by launching frivolous lawsuits they have no chance of winning. If a plaintiff cannot show it is likely to win its case based upon the alleged defamatory statements, whether it be on the grounds of libel or another business wrong, it is not likely to be successful in discovering the identities of online posters, either.

Furthermore, even if it can be shown that there is a good case for cyber-libel, before a subpoena will be issued, a plaintiff should expect to demonstrate that the requested discovery is necessary to prove its case and that the request is sufficiently tailored to avoid unnecessary infringement of free-speech rights.

These emerging standards make the commencement of litigation and issuance of subpoenas an even more deliberate and calculated decision than ever before. Potential plaintiffs would be wise to provide sufficient specificity to convince a judge that measurable harm has been done, that they have a viable claim that will likely prevail if provided the identities of the anonymous attackers, that obtaining the names is vital to their claim, that they have taken all other steps in their power to obtain the names but have failed, and that they have tried to give the anonymous online poster notice of their claim.

While the general rule in most litigation is that discovery comes first and proof comes later, as regards the aspect of online anonymity the rule has now turned upside down.

Does this therefore mean that anyone can say whatever he or she pleases and nothing can be done about it? Hardly. There is no free-speech right to libel. Whenever plaintiffs have failed, it has often been because of not meeting all the elements articulated by courts squarely, or not meeting the newly imposed standards that have developed for these cases, not because it is impossible to succeed.

As these new standards gain traction in cases around the world, the rules will be known and plaintiffs in good faith with meritorious cases will be better able to frame their claims and discover requests in a manner calculated to increase their chances of success.

Moreover, when it comes to taking steps to offset the claimed damaging effects of cyber postings, potential plaintiffs can take heart in knowing that the same medium that makes it easy for negative statements to be made makes it equally easy to rebut them.

 (To be continued)

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