If you criticize a company on the Internet, do you have a right to keep your identity hidden? A California appeals court ruled the other day that businesses have to prove online comments are false and financially harmful before they can unmask anonymous critics via subpoenas.
The decision has important 1st Amendment implications, safeguarding people’s right to free speech — and I’m certainly in favor of that.
But the more I delved into the ruling, the more I found myself stewing on the undeniable problem of anonymous cyber-trolls saying hateful, factually dubious things from beneath a digital cloak of invisibility.
That’s why I’m increasingly thinking that our best solution to keeping trolls at bay may be a requirement by social-media sites that all members use their real names when posting comments.
“Trolling is a terrible problem,” acknowledged Ryan Calo, an assistant law professor at the University of Washington who specializes in technology issues. “Are companies doing enough? I don’t think they are.”
He quickly added, however, that “we shouldn’t live in a world where if you don’t show utmost civility, you get erased from the Internet.”
I can’t imagine anyone will dispute that simple courtesy has broken down online, with many people now indulging their worst instincts and saying things they’d never say in a real-world setting.
A 2014 study published in the journal Personality and Individual Differences concluded that “trolling correlated positively with sadism, psychopathy and Machiavellianism.”
“Of all personality measures, sadism showed the most robust associations with trolling,” it found. “Thus cyber-trolling appears to be an Internet manifestation of everyday sadism.”
I’m aware that my stance — which, let the record show, I’m putting out there under my own name — will not be popular with some. It also seems to beg for exceptions, which undermines my argument.
Take the case of ZL Technologies vs. Doe, which was the subject of last week’s state court ruling. ZL is a Milpitas company that helps other businesses manage their digital information and records.
The company served a subpoena in 2012 on the workplace review site Glassdoor.com, on which anonymous ZL employees, or former employees, had posted negative comments. It demanded to know their identities.
According to the lawsuit, one commenter said: “It’s every man/woman for themselves. If you like to engage with your job like it’s a bloodsport in a Roman Coliseum, you’ll love your job.”
Another said ZL’s chief executive, Kon Leong, “cannot effectively manage the organization and lacks the self-awareness to realize it.”
In her decision, acting Justice Maria Rivera ruled that there’s a need for “minimal precautions” to protect “the right of a speaker to put ideas into the public marketplace without fear of harassment or retaliation.”
She concluded that ZL would have to show evidence of “defamation, including falsity, before disclosure of a defendant’s identity can be compelled.”
ZL’s Leong told me he accepts people’s right to criticize him and his company online. However, he cited one anonymous Glassdoor user who, according to the lawsuit, said that ZL’s pay is 30% to 50% lower than comparable tech firms.
“That’s a falsehood that hurts the company,” Leong said.
He said he isn’t sure yet if ZL will challenge the latest court ruling.
Paul Levy, a lawyer with the advocacy group Public Citizen who wrote an amicus brief in the case defending Glassdoor, said the takeaway from the decision is that a company would need to show how it was harmed by an anonymous comment — a decline in revenue, say, or a falling stock price.
This sets a high bar, he said, because there could be numerous reasons for a company’s poor performance. Mean and nasty trolls likely would not be the sole cause of financial losses.
“The 1st Amendment protects people from compulsory identification,” Levy said. “There are a lot of good reasons to want privacy or anonymity when you speak online.”
That’s true. And critiquing a current or former employer on a site like Glassdoor without fear of retaliation is one of them. Submitting information in a whistleblower capacity is another, or protecting a victim of domestic violence.
But there are gray areas. I know many small-business owners who are frustrated that customers — and rival companies — can post anonymous negative reviews on sites like Yelp. Why, they ask, shouldn’t such people be accountable for any accusations they make, just as the business is being held accountable?
And then there’s Twitter, a digital playground I frequent. I know all too well how easy it is for people with made-up, identity-concealing handles to post vicious insults or spread complete falsehoods.
I always find myself thinking that if they had to stand behind their words — that is, accept responsibility by having their identities known — there’s no way most of these people would behave this way.
They’d almost certainly follow many of the same conventions they follow offline, which means giving thought to how their remarks will be perceived by others. In the real world, good sense often dictates not saying aloud all the things you think.
Facebook tried to address the problem of trolls by requiring that “the name on your profile should be the name that your friends call you in everyday life.” But that doesn’t stop a would-be troll from creating an account as “John Smith” or “Mary Jones.”
I suspect we’re heading to a world in which some sites will be wide open for trolls and others will try to maintain higher standards of decorum, perhaps using artificial-intelligence software to spot abusive posts.
Facebook, Twitter and other leading social-media services should require use of real names, and they should enforce such a policy by requiring a credit card when signing up. This would serve as a means of identification as well as facilitate online purchases, which all these sites want to do anyway.
Obviously this wouldn’t be a foolproof system. Really persistent trolls would just obtain plastic with sneaky names. But it likely would deter the vast majority of casual trolls and compel them to play nice (or nicer) with others.
Also, I checked with several privacy experts. The consensus was that even though social-media sites — particularly Twitter, so beloved by the president — have become a sort of national soapbox, they don’t legally count as “public forums.”
That means there’s no 1st Amendment requirement that these private companies protect free speech through anonymity.
“These aren’t government-run parks or streets,” observed Danielle Citron, a law professor at the University of Maryland who specializes in privacy matters. “A private company can decide what its rules are.”
Free speech is part of the DNA of this nation. But so is treating others with respect, I’d like to think.
Calo at the University of Washington said it’s unlikely the big social-media sites will take action until they notice a large number of users walking away in frustration.
Tell you what, guys: I think we’re already there.
ALSO BY LAZARUS