A hypothetical situation

This post is really just a way to try give some insight into some some of the issues that anyone running a blog or website, that allows people to publish their own content online, can run into.  It’s my own personal view, and doesn’t relate to any specific situation, but could apply to this blog if I didn’t moderate replies to posts with sufficient attention to detail.

First the legal position.  If anyone chooses to publish content so that it is publicly viewable, then they are usually legally responsible for that content.   If it is inaccurate, potentially damaging to a reputation such that it may be seen as defamatory, contains unlawful content, etc, then it is the author who publishes it who is normally legally responsible, not the owner or operator of any website they may have used as a vehicle to enable that publication.  There is case law on this, that clarifies the responsibilities of both the publisher, and a website owner or operator.

If the owner or operator is made aware of any content, by any means, that may be potentially defamatory, unlawful etc then they have an obligation to hide it from public view promptly, even if they may then review it, conclude that there is no potentially damaging content, that they have done all that is required of them, and allow the content to be published once more.  If they fail to do this they may be acting unlawfully, or at least may put themselves in a position where they themselves are open to public criticism for failing to act.

Things get more complicated when anonymity is involved, though.  It’s very common for people to post things on the internet using a pseudonym.  Often the web site operator/owner won’t know the real identity of those who post in this way, and they may choose to register using a disposable email address that is hard to track back to an individual.  There’s no legal obligation for anyone to give their real name on a publicly viewable website, anyway, and some may be restricted from doing so for a host of good reasons, including their employment terms and conditions.

This anonymity is fine most of the time, and causes no issues at all.  However, there are times when there may be a requirement upon someone publishing under a pseudonym to have to release their name, perhaps in confidence to someone that privately requests it or if there is an issue over their published content and the web site owner/operator needs to know the identity of the author.

It’s no secret that I have occasionally done some consultancy work, wholly unrelated to the topic of this blog or building in any way.   I’ve never acted as an agent, employee or consultant, for any building-related company, anyway.

I keep a low profile because of the nature of the work, am discreet, never advertise or use social media, have no website covering this work and never reveal confidential details about it.  The reason is simple, it is in confidence between me and two other parties, one of whom I am contracted to, and I am bound by certain aspects of the law to maintain confidentiality.  I get new work solely on the basis of reputation, nothing else, so if there is any damage to this then I may cease to get new work.

Taking a hypothetical case, assume, for the sake of argument, that someone publishes an anonymous statement online about my consultancy work, naming me, and being critical of the standard of my work.  What do I do?

If I do nothing, then there is a good chance that my reputation may be damaged, plus I have a work ethic where I strive to make sure that I always do my very best for every client and try to remedy any shortcoming that is pointed out to me, as quickly as possible.

The first thing I need to do is determine the real identity of the person that has published the anonymous content, because I need to know, positively, who they are so that I can offer a remedy.   I cannot offer a remedy unless I know for sure who the writer of the anonymously published content is.

Data protection laws restrict what I can and cannot do to some extent.  Even if I have a good idea as to who the anonymous person may be, I cannot use guesswork to contact them using personal client data that I may hold, as that would be a serious misuse of that information.  There is always a risk that I could be wrong, and so could be passing a  confidential client name on to someone else, and that is not acceptable, and may be a breach of data protection legislation that I have to comply with.

My only possible course of action is to ask the entity running the website to ask the person that has posted the content in question if they are willing to  pass their real name on to me.  I can then contact them directly to discuss offering a remedy.   Clearly, this needs to be in confidence, and not done publicly, as it’s a matter of contractual confidentiality, at the very least.

If someone refuses to allow their real name to be passed on to me, then I’m in a very difficult position.  I’ve effectively been denied the ability to offer a remedy, because I don’t have formal confirmation of the identity of the client.

It also places the owner/operator of the host website in a difficult legal position, as they have a legal obligation to ensure that, when they are informed of content that may be damaging to the reputation of an individual, or company, they hide it from public view whilst they seek to  resolve the matter.  Failure to do this, as a precaution, may lead to more serious action being taken.

In this hypothetical case, once any potentially damaging content has been taken down, I’m still left in a very difficult position.  I don’t know the identity of the person who wrote the content, so am powerless to offer a remedy.  At the same time I am aware that one of my clients is unhappy, but I have no way of finding out which one, unless that client chooses to contact me directly, which I would hope that they would.

Can situations like this hypothetical one be avoided?  Yes, of course they can.  In the first instance all my clients should feel that they can contact me directly and raise any issues they may have, and understand that they will get a positive response from me to try and address the issues they have with my work.

If these cannot be resolved in this way, then they can choose to seek a remedy through a private arbitration service.  Many legal firms now offer such a service, as it is often both more effective and cheaper than legal action.

If this fails then the last resort should be legal action, where both sides can present their case and a judgement will be reached that is binding upon both.

One point missing from the above is the principle of fairness when publishing content.  Not fairness in terms of the content itself (although clearly caution is needed if making unsupported accusations), but fairness in terms of both sides knowing who the other side really is.  It’s only reasonable for someone publishing critical content that names another person, or company, to do so using their real name, or at least make their real name available on request.  That then gives the person or company named the opportunity to act to remedy problems, or ask the person to correct inaccuracies on their published content.  It also works as a moderating influence on what is published in the first place, as if someone is aware that they are obliged to give their real name to someone that they have named publicly, then it may well concentrate their mind before they publish such content.

If someone decides to write critical content about a named individual or company, but does so whilst hiding behind a barrier of anonymity, then that is intrinsically unfair, for all the reasons given above.  It very effectively blocks any form of private right to reply, and denies the author the opportunity to be offered a remedy.

 

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