Anonymous Speech in the Internet Age: The Good, the Bad, and the Uncertainty…

By Elizabeth Morris
Fordham Intellectual Property, Media & Entertainment Law Journal
IPLJ Article Permalink

Have you ever wanted to post bad reviews of a restaurant, but been afraid the restaurant would find out it was you and spit in your food if you decided to give it a second chance? Exactly how anonymous are anonymous postings? Unfortunately for you, it’s likely that a court might say they are hardly anonymous at all. In In re Anonymous Online Speakers, the Ninth Circuit held that the identity of anonymous posters is only afforded limited protection in the context of commercial speech (as opposed to political or religious speech).[1] While the court acknowledged the right to a “robust exchange of ideas” through anonymous Internet speech, it also acknowledged the need to protect businesses from malicious speech. To protect businesses from such defamatory attacks, the Ninth Circuit limited freedom of speech for cases in which comments are potentially harmful to businesses.

While the court’s aim to restrict malicious speech is noteworthy, and potentially addresses concerns about comments from competitors, former employees, etc., does it devalue the usefulness of anonymous speech for commercial purposes? Internet sites that offer anonymous consumer reviews can be useful tools for individuals seeking not just restaurant or product reviews, but also services such as medical care and legal advice. Many of us would rather risk that a negative review on a site is from a bitter former employee, than risk that people did not post their negative experiences with medical practitioners for fear of their identity being revealed. With the ever-expanding resources of the Internet, it can be a challenge to find services that meet individual needs. The “robust exchange of ideas” that is offered through anonymous postings is a starting point for a mother seeking day care services, a patient in need of a doctor, or a taxpayer seeking an accountant. In fact, Yelp offers reviews for nearly any product or service in locations nationwide. Without these anonymous reviews consumers would have no starting point and it would be an even greater challenge to sort through all of the resources on the Internet than to sort through reviews and find the best product or service available.

While cases such as Anonymous Online may go too far in limiting protection to anonymous speakers, it is also important to keep in mind that some websites may be more apt to protect the identity of their users than others. For example, in another case also in the Ninth Circuit, the court ordered an individual’s Facebook posts to be revealed for discovery purposes. Facebook, however, declined to make the information available, willing to go to court to protect its users’ privacy.

The moral of the story, at least for now, is that with the ever-expanding social media world and constantly changing privacy laws, anonymity is not certain. Anonymous postings may not be so anonymous. Some websites might go to war to protect their users’ privacy, but others may be quick to comply with a court order. Perhaps we should all think twice before posting information on any anonymous site or social media forum. Perhaps people should take the time to research a given website’s privacy policies before posting. While this might deter the anonymous from posting their consumer reviews, if the Ninth Circuit’s concerns about competitors posting fraudulent and malicious comments have any merit, perhaps less anonymity will make these websites more valuable anyway.

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1. In re Anonymous Online Speakers, No. 09-71265, 2011 WL 61635 (C.A.9 (Nev.) Jan. 7, 2011).