UPDATE: on Feb 6th Yelp filed an appeal against the unmasking order in Virginia Supreme Court
On 10 January 2014. A Virginia court upheld a request by a local carpet cleaning company and ordered Yelp to disclose the identities of several Yelp users who had uploaded negative reviews of the company. In this particular case, the request and decision were grounded in a combination of the Virginia law that allows courts to unmask those behind online identities if there is "legitimate, good-faith" belief they violated the law and a low threshold in applying said law.
On a larger scale, though, the issue dramatizes an ongoing tension between the requirements for accountability and for freedom of expression.
Abusers hiding behind anonymity
Recent incidents with revenge porn sites and cyberbullying demonstrate that it can be very hard to shut down cyber bullying, cyber-harassment, cyber-stalking and other forms of online abuse due to the difficulty of identifying the abuser. In this scenario, anonymity can enhance the abuser’s power and perhaps even encourage extremities of behaviour which would be less likely if visibly attached to an offline (or even just a fixed) identity. This hypothesis suggests that identifiability translates into accountability.
On the other hand, there is the principle, dating back to the Federalist Papers and beyond, that anonymity is important and necessary in order to allow true freedom of expression—unhindered by fear of repercussions.
The courts weigh in
In September 2012, the Supreme Court of Canada released its decision in A.B. v. Bragg Communications Inc., a case where a young woman who had been bullied asked the court to allow her to file a defamation suit against her abusers and yet protect her own identity. Writing for a unanimous court, Justice Abella found that:
If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully.
Users seeking protection behind anonymity
These extremes on the continuum make the issue seem clear – or at least clearer. But what about when we’re not talking about cyberbullying or revenge porn?
What about online reviews on sites like Yelp? A 2013 study indicates that such sites are achieving increasing importance, with surveys indicating that more than 75% of people say they rely on reviews from such sites as much or more than personal recommendations. In an attempt to encourage freedom to review honestly, in 2008 eBay changed their policies so that sellers could no longer assign negative reviews to buyers on the site. A recent (criminal) case in Ottawa demonstrates that freedom to post without (online) repercussions may not be sufficient. In this instance, a negative review of a restaurant was posted on RestaurantTHing.com, resulting in an escalating series of responses and retaliations from the restaurant owner. These ranged from posting of the customer’s personal information online, to posing as the customer to create a fake dating profile and send inappropriate emails to the customer’s co-workers and employers. Likening the behaviour to cyberbullying, the court sentenced the perpetrator to 90 days for criminal defamation.
Could the harassment have been prevented had the customer used a pseudonym or posted her review anonymously? Was it the fact that the customer used her own name that opened her up these attacks, or were they the result of an extreme overreaction on the part of the restaurant owner? Will future customers feel themselves unable to truthfully comment for fear of reprisals? Will the ability to review anonymously or under a pseudonym offer sufficient protection to keep reviews trustworthy? And if so, will a system where courts order sites like Yelp to disclose the identities of reviewers ultimately remove any protection that anonymity might provide, undermining the credibility of reviews and review sites?
No easy answers
Issues in our evolving digital culture have major implications in real life. We want to hold people accountable while still making it possible to say the scary things, to voice unpopular opinions free from reprisal.
Setting policies and developing laws that balance the transparency of identifiability against the protective powers of anonymity/pseudonymity isn’t easy. This issue is an important one and one that will continue to be battled on a case-by-case basis…