That the right to privacy extends to the internet is not something many would dispute. While ideally the principle that if you cannot say something to someone’s face you should not say it at all is a principle we value in society – the right to face one’s accusers being a prominent maxim exemplifying this – we all accept that there may be times when if one wishes to speak anonymously, there is nothing immoral about doing so. Anonymity on the internet is so common-place that many internet companies have strict privacy policies and many countries have laws which extend the right to privacy to cover anonymous online speech.

But how far does this cyber-right to privacy extend? Does it stand when people use it as a shield to harm others, to damage their reputations?

Defamation law gets a lot of flack for its chilling effect on freedom of speech and its potential for bankrupting judgments so some see the growth of privacy laws and policies of this nature to be a good thing but defamation laws exist for a reason. It is not unreasonable to assume that statements pertaining to others are true, fairly and accurately made because reputation matters; its unjust loss can cause considerable harm. As Stephen Franks writes, “Civilised jurisdictions depend on people being concerned about their reputations, on there being deterrent consequences to a bad reputation and incentive consequences to a good reputation.”

Attempts to use privacy law to abolish reputation must be balanced against defamation’s chilling effect on freedom of speech. Franks agrees, “Public comment has been unleashed by the internet to prick pomposity, and to undermine those who would keep the truth to anointed insiders. It should not be warped by defamation law.”

How then should we view last week’s in a landmark case? Justice Madden forced Google to provide the court with an anonymous blogger’s real name so that Liskula Cohen could sue the person who had falsely vilified her as a “skank,” “hag” and “psychotic lying whore.”  Google had refused Cohen’s  request to reveal the identity of the alleged defamer, Rosemary Port, citing its privacy policy. Cohen (apparently as unqualified to apply for the CIA’s hacking team as the rest of us) found herself with no choice but to put the law to the test if she was to get any further in the exercise to protect her reputation.

In her judgment, Justice Madden rejected the defense’s claim that blogs “serve as a modern-day forum for conveying personal opinions, including invective and ranting,” and that only factual assertions should be considered libelous. In rejecting the privacy and free speech arguments Her Honor wrote, of Port’s blog, “The thrust of the blog is that the petitioner is a sexually promiscuous woman,” a conclusion she reached considering both the words and the context of their placement alongside pictures of Cohen in provocative poses.

It seems that the tension is weighted in reputation’s favour; privacy law will only shield online speech and protect privacy provided one is speaking within the confines of defamation law. Does this mean you can never be critical of others when writing online? No, but you should probably try to keep your words true, fair and accurately stated.

PS. Port is now saying she will sue Google for $16 million for “breaching its fiduciary duty to protect her expectation of anonymity.” Frankly I don’t like her chances; Google hardly gave up her email address voluntarily.

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