Not For Your Eyes Only: Israel Adopts Rules on Online Anonymity

IBLS Contributor: Odia Kagan, Partner, Shavit Bar-On Gal-On Tzin Nov Yagur Law Offices – Tel Aviv, Israel, odia.kagan@gmail.com, writes:  

VCM (Haifa) 850/06 Rami Mor v. Yediot Internet, the YNET website editorial board – the forum board (District Court of Haifa, Hon. Yitzhak Amit)

In the first case of its kind to reach the District courts in Israel, the District Court of Haifa sets clear guidelines for disclosing the identity of anonymous writers of defamatory materials online.

Rami Mor, a holistic therapist, filed two motions with the Magistrates Courts to disclose the identities behind several replies posted in Israeli medical online forums. The publications included one who stated that she “was treated by him …and was deeply disappointed”; others stating that Mr. Mor is a “charlatan” and a “thief”; people should “watch out” and more. 

Both motions were denied by the Courts which relied on a previous Magistrates Court ruling holding that the identity of an anonymous writer would be exposed only if the content amounts to a criminal offense. Mr. Mor appealed the decisions to the District Court.

The Law and the Internet – Not a ‘Buggy Without a Horse’

The District Court commenced by discussing the relationship between the law and the Internet, stating that when dealing with the Internet the Court must be aware of its unique characteristics. “As a car is not ‘a buggy without a horse’ and the radio is not ‘a telegraph without strings’ so is the Internet much more than an ‘electronic newspaper’”. Since the Internet allows for dynamic, diverse, interactive and hypertextual discussion, it has become a constitutive factor in democratic countries and must be advanced and protected.

Having established the framework, the Court proceeds to discuss the issue at hand – disclosure of identity in libel cases.

There’s no specific law, but…

First, the court holds that the tort of libel applies to the Internet, stating that “libel is libel” whether it is published in a newspaper or online”.

The Court notes that even though there is no law in Israel dealing with the issue of disclosing the identity of anonymous writers, the Court can draw on the Electronic Commerce Bill 2005 (which has not yet been signed into law). The bill states that the Court will order the ISP to disclose if there is a “real suspicion that a tort or a crime has been committed”.

Anonymous Speech Prohibited

The Court then goes to discuss anonymity. Does anonymity change the situation? The Court holds that whereas anonymity advances democracy by providing everyone with equal ground and standing devoid of class and status, it also promotes anarchy, giving people freedom from their inhibitions.

However, for all its benefits, anonymity does not alter the character of the speech. If speech is libelous, or racist, it does not become less so because it was made anonymously.

Therefore, speech constituting a civil tort (of libel or invasion of privacy) would give reason for the Court to order the disclosure of the writer’s identity. However, in order to ensure a better balance of freedom of speech with the right to privacy and to prevent a “chilling effect” on speech, for such order to be given an additional element should be present.

Such effect may be derived from the following considerations:

• The claimant filed the claim in good faith.
• The claimant’s chances to prevail in the claim are good. (The ability to prevail in a motion for summary dismissal is not sufficient.)
• The type of protected speech – More protection would be given to political speech, less to commercial speech and the least to private speech.
• The claimant is a public figure and the public has a right to know
• The severity of the speech and its negative effect
• Is it a one-time or repeated and systematic expression?
• The nature of the website (Is it a griping website or a professional forum?)
• Did the reasonable reader attribute weight to the publication?
• Will the disclosure of the writer’s identity cause more harm than good?

In addition, the Court proposes that a claimant take several steps before filing a claim:

• Exhaust all alternatives for the disclosure of the anonymous writer’s identity.
• Do all that he can to inform the writer of his intention in order to enable him to defend against the motion for disclosure. This includes publishing the fact of filing the claim on the website where the hurtful publication was made and informing the writer that he has a right to defend himself in Court.
• The Claimant will bear all court expenses.
• The disclosure of identity will be made in stages. The proceeding will be carried out as a John Doe proceeding. A motion will be filed for a Court disclosure order simultaneously with a primary claim. Thus, the identity will be disclosed first to the Court only, which may hold the hearing in the defendant’s absence.

Applying the criteria to the publications in this case, the Court held that some of the publications meet with the said criteria and should be disclosed. However, as the Court recognizes that its decision narrows the test (of content which amounts to criminal libel); it decides to deny the motion for the disclosure of the writer’s identity in this case.

This judgment comes after a heated discussion in Israel on this matter which culminated in a bill proposing to require by law the identification of writers of posts and replies online.  In light of this fact, the case constitutes a significant development in Israeli law. Relying, in large part on US case law on the subject including Dentrite International Inc. v. John Doe (342 NJ Super 134, 75 A 2d) and John Doe v. Patrick Cahill the Court sets forth an organized, didactic analysis of the question and proposes clear, reasoned guidelines for the disclosure of the anonymous writers’ identity. The Court also provides an official stamp of approval for the “John Doe” proceedings which are not yet prevalent in Israel.

Though the guidelines are vague and leave much room for judgment, they provide the courts and the writers with tools to help them decided how to proceed and thus constitute a first step toward a serious, well though-out analysis and treatment of this question, which it did not previously receive. 

* The Article was also published in Ms. Kagan's blawg “e-legal” at www.odiakagan.typepad.com

Ms. Kagan specializes in Internet and IT law. Her articles on these subjects are published regularly in professional publications of the American Bar Association and the New York State Bar Association as well as in national Israeli websites. Ms. Kagan authored the Israeli Chapter in the book “Cybercrime and Security” published worldwide by Oceana Publications, a division of Oxford University Press. A graduate of the Law Faculty of Tel Aviv University, Ms. Kagan is a member of the Israel and New York Bars, is qualified as a Solicitor in England & Wales and is also admitted as legal practitioner in New South Wales, Australia.