Thursday, July 15, 2010
What should be the legal rule as to unmasking anonymous online users? The typical case is defaming content, generated by anonymous users. The Article discusses this burning issue in the Israeli context, in a comparative manner and within three intertwined frameworks. First, I explore the meaning of anonymity and argue that it is worthy of legal protection both as an instance of the principle of free speech (similar to American jurisprudence), and as an instance of privacy (closer to the European jurisprudence). Second, I argue that free speech should be an organizing principle in regulating the digital environment. The internet offers a unique discursive space. Any proposed rule should be evaluated as to its direct and indirect impact on free speech. Third, the regulation of online anonymity should be located within a broader framework of law and technology, which is attentive to the dynamic inter-relationship between the two.
The Article analyzes the development of the legal rule in Israeli court regarding the unmasking of anonymous users, including the recent decision (April 2010) of the Supreme Court in the case of Mor v. Barak Online, Ltd., in which the Court ruled that current Israeli law lacks a proper procedural frame to enable courts to order the unmasking of users, the result being that courts lack authority to issue such orders. I propose a procedure in which the ISPs first and the courts later, if needed, serve as an intermediary between the offended party and the anonymous user, so to maximize the privacy and free speech of the user, of potential users, while minimizing potential abuse of the unmasking procedure and enabling redress in due cases.
Download the article from SSRN at the link.