Anonymity

. General Position
Introduction to Anonymity

- The general attitude towards anonymity:

“Anonymity is a shield from the tyranny of the majority … It thus exemplifies

the purpose behind the Bill of Rights, and of the First Amendment in particular to
protect unpopular individuals from retaliation — and their ideas from suppression —
at the hand of an intolerant society. The right to remain anonymous may be abused
when it shields fraudulent conduct. But political speech by its nature will sometimes
have unpalatable consequences and, in general, our society accords greater weight
to the value of free speech than to the dangers of its misuse.” – US Supreme Court
decision in McIntyre v Ohio Election Commission 514 US 334 (1995)

‘Anonymity has long been a means of avoiding reprisals or unwanted

attention. As such, it is capable of promoting the free flow of ideas and information in
an important manner, including, notably, on the Internet. At the same time, the Court
does not lose sight of the ease, scope and speed of the dissemination of information
on the Internet, and the persistence of the information once disclosed, which may
considerably aggravate the effects of unlawful speech on the Internet compared to
traditional media...’ – Grand Chamber of ECtHR in Delfi v Estonia (Application no.
64569/09) (2015)

- On what basis do internet users operate anonymously?

1. It is not provided for either by Statute, or as a fundamental right. On the other

hand, there is no law that states that you must identify yourself when using the
internet, uploading content, postings, comments etc.

2. Social media platforms not only allow users to operate anonymously but also
to sign up and use their platform without providing verified identification. When
signing up to their platform, Twitter and Facebook only require an email address or a
telephone number for the user wishing to join. It would drastically reduce the no. of
sign ups, and use and earning potential of these platforms.

3. Is there a legal right to retain online anonymity?

The general proposition that bloggers have a specific right to anonymity was considered by
the English High Court in The Author Of A Blog v Times Newspapers Limited [2009]
EWHC 1358 (QB).The court was faced with an application by the plaintiff – a police officer –
who wished to prevent the defendant newspaper from unmasking his identity. The Plaintiff
submitted the general proposition that ‘there is a public interest in preserving the anonymity
of bloggers.’ This was rejected by the court, which said: “...It is in my judgement a
significantly further step to argue, if others are able to deduce their identity, that they should
be restrained by law from revealing it.”

In K.U. V Finland (App no. 2872/02, 2 December 2008), the ECtHR considered an
application from a 12-year-old Finnish boy whose identity had been used on an internet
dating site. Finnish law allowed intermediaries to refuse to disclose the identity of their users
"to protect their right to anonymous expression." The Court held that the boy's right to
privacy had been breached, and that the guarantee of internet users contained in articles 8
and 10 ECHR “could not be absolute and should yield on occasion to other legitimate
imperatives, such as the prevention ... of crime or the protection of the rights and freedoms
of others”

2. Bringing Proceedings Anonymously

Right to anonymity for a plaintiff

- Why would the victim of online behaviour want to remain anonymous?

1. They may be the victim of harassment/revenge porn

In The AB v Bragg Communications Inc [2012] 2 SCR 567, the Canadian Supreme
Court allowed the victim of cyberbullying to bring her proceedings anonymously, citing
the importance of both her age (she was 15) and the need to encourage victims to
bring proceedings without "the risk of further harm from public disclosure"

2. They may be the victim of a defamation/a cyber-attack

In the Australian case of X v Twitter Inc [2017] NSWSC 1300, the Supreme Court of
New South Wales granted anonymity to a company about whom fake twitter accounts had
been set up in an attempt to damage their reputation. The Court held that "If that were not
so, the protection that the plaintiff seeks in relation to its private and confidential
information right be undone."

3. What is the law about bringing proceedings anonymously?

• The Civil Procedure Rules in the UK allow the court a general discretion to conceal
the identity of any party, or witness, ‘if it considers non-disclosure necessary in order to
protect the interests of that party or witness."

• A series of high-profile cases in the UK involving "super injunctions" around 10 years

ago obliged courts to face the reality of trying to hide the identity of parties in the age of
social media – see PJS v News Group Newspapers [2016] UKSC 26.

• The courts in Australia and New Zealand have likewise shown themselves more willing
to allow victims to bring proceedings anonymously - X v Twitter Inc [2017] NSWSC
1300.
• Situation in this jurisdiction, however, is very different...

3. Anonymity in Ireland
Right to anonymity for a plaintiff in Ireland? No

• Irish courts have traditionally been reluctant to allow for someone to institute proceedings
anonymously. This is based on the constitutional right to have justice administered in public
under Article 34.1.

"Justice shall be administered in courts established by law by judges

appointed in the manner provided by this Constitution, and, save in such special and
limited cases as may be prescribed by law, shall be administered in public."

• Aside from the requirement to hold certain proceedings in camera, the Courts have
interpreted this constitutional provision as requiring the identification of parties.

Roe v The Blood Transfusion Board [1996] 3 IR 67

• The Plaintiff had contracted hepatitis C through a blood transfusion with the Defendant and
sought to bring proceedings under an assumed name so as to protect her privacy.

In refusing the application, Laffoy J held that "the public disclosure of the true identities of
parties to civil litigation is essential if justice is to be administered in public."????????? Are
they the same thing? Would the principles have been lost if she would have been
anonymous? Would we have gotten less from the case?

McKeogh v Doe [2012] IEHC 95

• Plaintiff sought orders from the Court which would prevent six national newspapers from
either publishing details of the video clip which purported to show him evading a taxi fare, or
from revealing his identity.

• It was submitted on his behalf that retaining his anonymity was the only way for the Plaintiff
to be granted an effective remedy, as the publication of his name in the media would perform
the very mischief he was attempting to prevent. The Court rejected the application, stating
that “the right to have justice administered in public far exceeds any right to privacy,
confidentiality or a good name.”

4. Identifying Anonymous Defendants

How to unmask anonymous users

Summary:
• The benefits of anonymity, in terms of fostering positive discussion, enabling
whistleblowing and facilitating freedom of expression, are self-evident.

• The downside of facilitating anonymous posting of content is that it encourages unlawful

content.
• In respect of direct legal liability for such material, online platforms are provided robust
protection for the material they host by Article 6 of the Digital Services Act (Art.14 of the E-
Commerce Directive), and by section 27 of the Defamation Act 2009.

First step:
• Ask the internet intermediary being used (ie Facebook, Twitter etc) to identify the
anonymous user.

• Platforms are traditionally very protective about the right of their users to operate
anonymously. Twitter recently stated that: “Pseudonymity has been a vital tool for speaking
out in oppressive regimes, it is no less critical in democratic societies.
“Pseudonymity may be used to explore your identity, to find support as
victims of crimes, or to highlight issues faced by vulnerable communities.”

• General position is that they will refuse to release any information about their users without
a court order, citing issues concerning data protection and confidentiality.

• Other positions of such platforms when requested to identify users relates to whether or not
they are sure the material is actually unlawful. In Muwema v Facebook Ireland Ltd [2017]
IEHC 69, for example, Facebook said that they are 'not in a position' to arbitrate as to
whether the material a user has uploaded is unlawful.

The Australian initiative:

Background:

• Decision in Fairfax v Voller [2021] HCA 27 (Fairfax held responsible for comments made
by 3rd party users).

• In November 2021, prime minister Scott Morrison articulated the frustration of many victims
of anonymous online trolling when he declared that social media has become a “coward’s
palace … ... where (anonymous) people can say the most foul and offensive things to people
and do so with impunity.” – platform is the root cause.

• The draft Social Media (Anti-Trolling) Bill 2021, which followed almost immediately, is an
attempt to codify some of the Prime Minister’s suggestions.

Social Media (Anti-Trolling) Bill 2021

▪ The Bill proposes to make social media platforms liable for comments posted by users of
social media, as well as comments posted by third parties on that user’s page, by
considering the platforms to be the publishers of such comments. It further proposes to
remove the defence of innocent dissemination which had previously been available to them.

▪ This apparently onerous provision is tempered by a new defence which is available to

social media platforms, which requires them to have a “Complaints Scheme” in place, and to
follow that Scheme upon receiving a complaint from an injured party:
 a) Upon receipt of a notice alleging that a person has been defamed, the social
media platform must contact the author of the comment within 72 hours to inform them;

b) If the author of the comment consents, the comment will be removed by the social
media service;

c) If the author of the comment does not consent to it being removed, the social
media service must provide the complainant with the author’s name, address and email
address, subject to the author consenting to such information being disclosed;

d) If the author does not consent to their name and address being disclosed, the
complainant can apply to the court for an “End-user information disclosure order”, obliging
the social media service to give the complainant contact details for the author of the
defamatory comment. (this appears to mirror the Norwich Pharmacal procedure utilised in
this jurisdiction.)

Doesn’t work if allowing people to sign up anonymously – based on the platform

knowing their identity. It compels SM platforms to know who their users are. Makes sense.
Similar in the UK, nothing like this in Ireland.

How to unmask anonymous users – Norwich Pharmacal procedure:

An action whose aim is purely to obtain information in respect of a proposed defendant is not
provided for either by legislation or the Court Rules – instead, it is provided for by the
inherent jurisdiction of the High Court. The relief was established in Norwich Pharmacal v
Customs and Excise Commissioners [1974] AC 133, a decision which has given the
application its name, in which Lord Reid gave the definitive statement of the principle:

‘…if through no fault of his own a person gets mixed up in the tortious acts of
others so as to facilitate their wrong-doing he may incur no personal liability but he
comes under a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrongdoers.’

The granting of a Norwich Pharmacal order is an entirely discretionary relief and the courts
have formulated a test that must be met before such an order will be granted. The test is as
follows:

1) There is a reasonable basis to allege that a wrong has been committed.

2) The disclosure of documents or information from the third party is needed to

enable action against the wrongdoer.

3) The respondent is sufficiently involved in the wrongdoing so as to have facilitated

it, even if innocently, and is in a position to provide the information.

4) The order is necessary in the interests of justice on the facts of the case.
In the majority of cases, the internet intermediary does not oppose the application, and the
order will be granted.

Issues with the procedure:

• It is only provided for in the High Court, so is expensive. Original draft of Harassment,
Harmful Communications and Related Offences Bill had a provision to bring such an
application to the Circuit Court, but this was dropped before the enactment. This is again
being recommended in the reform of the Defamation Act 2009, which is currently undergoing
consultation.

Salesian College v Facebook [2021] IEHC 287

Background:
Boys set up a Whatsapp group and shared teacher info (some student info) in the form of
banter/memes. Someone complained. School wanted to “discipline” the boys. Members of
the group were operating anonymously. Application to discover identity. Court considered
wider issues at play (1. school children’s identity, 2. only entitled to anonymous identity in
order to prosecute them for unlawful conduct, 3. general right to freedom of expression and
privacy). School didn’t intend to sue

The High Court proposed to refer three questions to the Court of Justice in respect of such
applications:

1) Do the rights conferred under Article 7, Article 8 and Article 11 of the Charter of
Fundamental Rights of the European Union imply a right, in principle, to post material
anonymously on the internet (subject always to any countervailing objective of public
interest)?
– First time anyone asked CJ if there is a right to anonymity.

2) What is the threshold to be met under the General Data Protection Regulation
and/or the Charter before the provider of a social media platform can be compelled to
disclose, to a third party, information which would identify an otherwise anonymous account
user?

3) Is there any necessity for a national court to attempt to put the affected party on
notice of an application which seeks to identify the operators of an otherwise anonymous
user account?
– No provision for this in Norwich Pharmacal orders.

• The information obtained may not even reveal the identity of the anonymous user. In
Parcel Connect v Twitter [2020] IEHC 279 for example, Twitter stated that it "has nothing to
say as to what the information should be and does not warrant that such information as it
has will be sufficient to allow the plaintiffs to establish the true identity of the owner and
operator of the account...”

• There is a lack of clarity as to who pays for the costs of the application.
5. General Right to Privacy
Origin of the right to Privacy:

- The right to privacy does not come from Statute. In Ireland, it is an unenumerated right
under Article 40.3.1 of the Constitution:

"The State guarantees in its laws to respect, and, as far as practicable, by its laws to
defend and vindicate the personal rights of the citizen."

Kennedy v Ireland [1987] 1 IR 587

“The dignity and freedom of an individual in a democratic society cannot be ensured

if his communications of a private nature,be they written or telephonic, are deliberately,
consciously and unjustifiably intruded upon and interfered with.”

It is not an unqualified right, with Hamilton P. stressing that it was subject to the
constitutional rights of others and the preservation of public order, morality and the common
good.

Right has been re-iterated on several occasions in the Superior Courts:

• Herrity v Sunday Newspapers [2008] IEHC 249
• Hickey v Sunday Newspapers [2011] 1 IR 228*
• Nolan v Sunday Newspapers [2019] IECA 141

6. Balancing Privacy w/ Freedom of Expression

Origin of the right to Freedom of Expression:

- It is also a Constitutional right but is specifically provided for under Article 40.6.1:

"The State guarantees liberty for the exercise of the following rights, subject to public
order and morality: The Right of the citizens to express freely their convictions and opinions"

It is not an unqualified right, with the same Article providing the restriction:

"The publication or utterance of seditious or indecent matter is an offence which shall

be punishable in accordance with law."

Both rights are protected by the EU Fundamental Charter of Human Rights and the
European Convention of Human Rights:

The Charter:
• Article 7 provides for "respect for private and family life"
• Article 11 provides that "Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers.
The Convention:
• Article 8 provides protection for "private and family life, his home and his correspondence"
• Article 10 provides that "Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers.

7. Specific Issues Concerning Privacy

Specific internet law issues pertaining to privacy:
1) Privacy and photography
2) Privacy at work
3) Privacy as a right v social media 'privacy' settings

1) Privacy and Photography:

Much of the case law surrounding breach of privacy has involved the publication of
photographs which that person did not consent to being published. As photographs can be
uploaded and shared so easily online, this is a particularly pertinent consideration for internet
law.

A) The right to photograph someone:

When a person objects to their photograph being 'taken', what they are in reality objecting to
is its subsequent publication to the public, very often through the news media. They are,
however, two separate rights. There is technically no right to stop someone taking your
photo -
"The famous and even the not so famous who go out in public must accept that they
may be photographed without their consent, just as they may be observed by others without
their consent." - Campbell v MGN [2004] UKHL 22.

B) When your right to privacy is infringed:

In respect of privacy and the publication of a photograph, Lord Hoffman held in Campbell v
MGN that the fact that we cannot avoid being photographed “does not mean that anyone
who takes or obtains such photographs can publish them to the world at large."

“The widespread publication of a photograph of someone which reveals him to be in

a situation of humiliation or severe embarrassment, even if taken in a public place, may be
an infringement of the privacy of his personal information. Likewise, the publication of a
photograph taken by intrusion into a private place (for example, by a long distance lens) may
in itself be such an infringement, even if there is nothing embarrassing about the picture
itself.”

See also:
– John v Associated Newspapers [2006] EMLR 27
– Hickey v Sunday Newspapers Ltd [2011] 1 IR 228
2) Privacy at work
This engages with two main issues:

a) Your employer's right to monitor your internet usage

b) The degree to which your 'private' online correspondence is truly private

"There appears .. to be no reason of principle why this understanding of the notion of

‘private life’ should be taken to exclude activities of a professional or business nature since it
is, after all, in the course of their working lives that the majority of people have a significant, if
not the greatest, opportunity of developing relationships with the outside world.”- Niemietz v
Germany (ECtHR, Application No 13710/88) 16 December 1992.

A) Employer's right to monitor an employee's internet usage in the workplace:

Barbulescu v Romania (ECtHR, App No 61496/08, 5 September 2017)

▪ The employee created and operated a Yahoo! messenger account on behalf of his
employer. The company circulated an information notice to its staff, which stipulated that
staff must not use company time for personal internet use. When accused of using the
Yahoo! service for personal reasons, the claimant denied doing so. He was then shown a
45-page transcript of the monitored communications from the company account, as well as a
number of messages that were sent on his personal Yahoo Messenger account and was
dismissed.

▪ Mr Bărbulescu alleged that his Article 8 rights to privacy had been infringed. In the lower
Chamber, it held that the monitoring had been reasonable. On appeal, the Grand Chamber
overturned the decision, finding that the domestic Romanian court had failed to consider:

- whether Mr Bărbulescu was on notice that his online usage might be monitored, or

- whether the scope of such monitoring would include the content of his
communications, rather than simply recording the flow.*

• Central to the Grand Chamber's decision was its finding that a total ban on private
correspondence in the workplace was impermissible, that "an employer’s instructions cannot
reduce private social life in the workplace to zero."

• The Grand Chamber stressed that monitoring of employees by the employer was not
illegal, holding that the latter retained ‘...a right to engage in monitoring, including the
corresponding disciplinary powers, in order to ensure the smooth running of the company’.

B) Is your 'private' correspondence truly private?

There is a recurring difficulty when an employer seeks to make use in disciplinary

proceedings of material that has been shared in closed Facebook or WhatsApp Groups, or
behind a user's privacy settings.
A Sales Assistant v A Grocery Retailer (ADJ-00011302, October 2018) - penalisation
case

▪ The complainant had been part of a picket outside the respondent's store, and was
penalised, inter alia, for her participation in the private Facebook page set up by 43 fellow
strikers. The respondents became aware of comments amongst the group which were in
breach of the company’s social media policy and used this as a reason for dismissing the
complainant. The complainant insisted that these were private communications between
union members, and not the business of the respondent.

▪ The Adjudicating Officer rejected the submission that this group could be considered
private with the following observations:

‘... [a]s a group with 43 members posting to a Facebook page, there is no prospect
that the information could be contained in the group. While the members may have aspired
to privacy, in reality the information was posted on the world-wide web ... It seems to me
naïve to think that any postings on Facebook are private.’ (only takes 1 person to break the
chain and make the info public)

Crisp v Apple (ET/1500 258/11 2011) - unfair dismissal case

• English employment case in which the complainant had been dismissed for comments he
published by third parties, and comments he made himself, on his personal FB page about
the quality of Apple's products. He claimed that those comments were private and could only
be viewed by his FB friends. The Tribunal disagreed:

"The nature of Facebook, and the internet generally, is that comments by one person
can very easily be forwarded on to others. The claimant had no control over how his
comments might be copied and passed on."

3) Privacy as a right v social media 'privacy' settings

The issue of privacy settings on social media and the degree to which they can prevent
content hidden behind those settings being used in court has not been considered by a court
in this jurisdiction…

Has yet to be discussed in Irish law.

Martin & Ors v Gabriele Giambrone P/A Giambrone & Law [2013] NIQB 48.

• Northern Ireland case concerning application for a Mareva injunction. Defendant objected
to evidence obtained from his Facebook account which suggested that he would "leave them
with nothing". Court refused to disallow the evidence, which appears to have been a private
conversation:
 "I should say that anyone who uses Facebook does so at his or her peril. There is no
guarantee that any comments posted to be viewed by friends will only be seen by those
friends. Furthermore, it is difficult to see how information can remain confidential if a
Facebook user shares it with all his friends and yet no control is placed on the further
dissemination of that information by those friends."

Evidence in personal Injuries proceedings

• Evidence, particularly from Facebook that contradicts a plaintiff's case in personal injuries
proceedings, is regularly introduced in the Irish courts, without any consideration of how it
was obtained, or whether it was hidden behind privacy settings.

• The question arises as to whether you can compel a plaintiff to produce relevant
information from behind these settings via a discovery application. No consideration in this
jurisdiction, but Canadian courts have considered both sides of the argument...

Leduc v Roman [2009] Supreme Court of Ontario

Discovery sought even though public profile revealed only the name and photograph of the
plaintiff.

Granted. Court held that: ‘To permit a party claiming very substantial damages for loss of
enjoyment of life to hide behind self-set privacy controls on a website … risks depriving the
opposite party of access to material that may be relevant to ensuring a fair trial’

Stewart v Kempster [2012] Supreme Court of Ontario

Discovery refused. Court held compared the application to one that might have been made
in pre-internet times: ‘It is unimaginable that a defendant would have demanded that a
plaintiff disclose copies of all personal letters written since the accident, in the hope that
there might be some information contained therein relevant to the plaintiff's claim. The
shocking intrusiveness of such a request is obvious.’