By Alan Gahtan - Law Times, July 20, 1998
A popular activity on the Internet has been participation in chat groups and bulletin boards. In the early days of the Internet, these consisted of UseNet newsgroups and e-mail distribution lists. More recently, Web-based discussion facilities are gaining in popularity. What all these facilities share in common is that they typically permit users to participate anonymously through the use of pseudonyms. However, a recent order, granted by the Ontario Court (General Division) on June 24th, 1998 pierces the wall of anonymity that many Internet users have come to expect.
Yahoo!, a popular Internet directory based in Santa Clara, California, operates a Message Board on various topics. One section is devoted to discussions of various publicly listed companies. As Yahoo! describes them, these are places where one "can discuss the future prospects of the company and share information about it with others." Similar discussion facilities are operated on various on-line services and other Web sites.
One such Message Board is devoted to Philip Services Corp. (NYSE: PHV), a waste recycling company that has recently suffered large losses, a dropping share price and the departure of many of its senior managers. According to Philip, several persons posted messages on the Yahoo! Message Board in which they libelled members of the company and its senior management. Other messages were alleged to contain confidential "insider information" about the company, its management and its financial results. The messages were posted using aliases so that the posters identity could be kept secret.
Philips reportedly asked Yahoo! to remove the most offensive messages from its Message Board and to prevent the authors of those messages from further participation. Philip also filed an action in the Ontario Court against numerous "John Does" identified by their Yahoo! aliases. Pursuant to that action Philip was successful, on an ex parte motion, in obtaining an order which required Weslink Datalink Corp., a Hamilton Internet service provider, to preserve certain electronic logs, to answer questions which would require the revealing of the names of certain of its users and to submit for an examination for discovery. Philip is also reported to have obtained similar orders against a number of other large ISPs including America Online Inc., AOL's CompuServe division, iStar Internet Inc and PsiNet Inc.
It is interesting that Philip was able to obtain the order that it got on an ex parte basis. Weslink was a third party and likely would not have been expected to destroy the relevant evidence. Normal practise would have been for Philip's counsel to at least contact Weslink or their counsel and advise them that they were making the motion. Even if there was strong evidence that justified the request for the preservation order, it seems odd that the Court would have granted the other orders (such as requiring Weslink to submit to an examination for discovery, although this requirement was removed as part of the variation of the order) without permitting Weslink to appear.
After being served with the order, Weslink went to court and was successful in obtaining a variation of the initial order (including costs). In accordance with the order, Weslink provided the name of a former member of Hamilton city council, John Gallagher, as the source of certain of the messages posted on Yahoo! Under the terms of the order, Weslink was not permitted to inform Gallagher until after the information was provided to Philip.
Philip was apparently able to identify Weslink as the ISP, and then Gallagher as the user, by means of an Internet Protocol (IP) address which was automatically assigned by Weslink's system to Gallagher. Although information about this point is not available, it seems likely that Gallagher's IP address may have been tracked by Yahoo! and then provided to Philip. If this was indeed what occurred Yahoo! may find itself in hot waters.
The terms and conditions applicable for participation in the Yahoo! Message Boards require users to agree that they will not transmit any message that is defamatory or libellous. However, it also provides that Yahoo! will take reasonable measures to respect the privacy of its users. While Yahoo! does advise users that it may disclose the "contents" of their communications in certain circumstances, such as to respond to claims that a message violates the rights of third parties, it does not state that Yahoo! would release the identity of a user or that a user's IP address would be disclosed.
The order obtained by Philip is believed to be the first time that a Canadian court has compelled an Internet service provider to disclose the identify of a subscriber. However, there have been other incidents, particularly outside Canada, where the anonymity of Internet users has been challenged or compromised. For instance, in August 1996 the District Court of Helsinki ordered a Finnish operator of an anonymous re-mailing service to turn over the identify of a user to the Finnish police who were investigating claims of copyright infringement made by the Church of Scientology (An anonymous remailing service replaces the sender's e-mail address with an alias so that the sender cannot be identified).
More recently, in September 1997, America Online was involved in an incident involving the disclosure of the identity of one of its subscribers. Timothy R. McVeigh, who bears no relation to the Oklahoma City bombing defendant, an enlisted man in the US Navy, had indicated his marital status as gay in his AOL member profile (although he used an anonymous "screen name" to conceal his real identity). A Navy paralegal called AOL and was able to obtain information to affirmatively identify McVeigh as the user of the screen name in question. The Navy then attempted to discharge McVeigh under 10 U.S.C. Section 654, colloquially known as the "Don't Ask, Don't Tell, Don't Pursue" policy.
Internet users will now likely think twice about the things they say and the places they visit while on-line. Those desiring real anonymity may find they'll need to frequent Internet coffee shops or Kinko establishments where anonymous Internet access can be obtained on an hourly basis.
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