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Cloak and dagger: privacy and defamation in social media

|Written By Kimberly J. Mackay
Cloak and dagger: privacy and defamation in social media

Parody accounts have added some levity to our daily social media browsing but they can also cross the line on occasion. Whether it’s our favourite political target like Stephen Harper, or an entertainer like Bill Murray, parody accounts seemingly have the ability to say publically, under a cloak of anonymity, what we would never dream of saying to someone one-on-one.

The Charter of Rights and Freedoms protects our right to freedom of expression but when parody accounts enter the realm of defamation, the Newfoundland and Labrador Supreme Court has clearly indicated, its tolerance for levity is coming to an end.

Recently, in King v. Power an application for production of Internet service provider addresses from a non-party, being Twitter and Facebook, was dismissed. While Justice William Goodridge denied the application due to Robert King’s failure to establish any evidentiary link between the defendant Ken Power and a parody account called “fakerobking,” Goodridge clearly denounced the “cloak of anonymity” enjoyed by such parody accounts.

When the offending account crosses the line into hurtful and defamatory comments, a “John Doe” application could successfully be granted to compel production of the IP addresses as provided by Twitter.

Goodridge stated: “A person who sets out to libel and destroy the reputation of another through social media postings cannot reasonably expect to hide behind a cloak of anonymity. . . .”

Social media accounts such as Twitter and Facebook have long maintained that their users’ freedom of expression is paramount. But more recently, they have come under greater public scrutiny to screen content and protect against trolls and abusive behaviours.

Twitter CEO, Dick Costolo, stated in an online forum Feb. 2, 2015:

“We suck at dealing with abuse and trolls on the platform and we’ve sucked at it for years. It’s no secret and the rest of the world talks about it every day. We lose core user after core user by not addressing simple trolling issues that they face every day. “I’m frankly ashamed of how poorly we’ve dealt with this issue during my tenure as CEO. It’s absurd. There is no excuse for it. I take full responsibility for not being more aggressive on this front. It’s nobody else’s fault but mine, and it’s embarrassing.“We’re going to start kicking these people off right and left and making sure that when they issue their ridiculous attacks, nobody hears them.“Everybody on the leadership team knows this is vital.@dickc”

While in the case of “fakerobking,” a parody account on Twitter, Twitter legal counsel resolutely denied any requirement to disclose IP addresses pursuant to a court order, in a bizarre twist the day after the court ruling, the “fakerobking” account mysteriously disappeared.

Whether the account holder voluntarily deleted the account or it was taken down, remains to be seen. What is clear is that the law, in trying to keep pace with privacy concerns and abuse on social media, is willing to go the distance to uncloak the perpetrators of abusive tweets so we can all go back to enjoying our morning water cooler chuckles over the latest parody antics and memes.

Lawyer Kimberly J. Mackay of Mackay Law in St. John’s, NL, defended Ken Power.


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