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Monday, February 4, 2002

Legal action against anonymous Netizens
Ali Hasnain

DO you want to know the identity of the cyber junky who keeps bombarding you with e-mail or of the cyber stalker who has made life hell for you in the cyber world or the hacker who used your credit card without your knowledge? Meet John Doe. He is the guy you wanna get your hands on!

John Doe is the alleged cyber criminal believed to be responsible for any or all of the unfolding ranges of Net world offences. The irony is that he is not tried in-camera. The case against him is argued in open court, but still neither the judge nor the jury nor the lawyers for and against the prosecution get to see what he looks like. Is he lean and thin like the crafty Casius or short and stocky like our next-door neighbour? Pray, why is he called John Doe? The more outstanding fact about John Doe is that he is not a fictional character like the vile Professor Moriarty who killed Sherlock Holmes. (The detective was later resurrected on popular demand in rather unconvincing fashion). He is not even the ubiquitous (X) to explain the yet undiscovered factor. He is a flesh and blood character like any of us. So who the hell is John Doe? The cyber world due to its very nature provides a high level of anonymity to offenders and cases where the identity of the defendant is yet to be ascertained are known as John Doe cases after a person of that name who holds the ignominious distinction of being the first defendant (in recorded history) to be tracked for alleged cyber defamation.


John Doe was a Netizien who went by the Net Identity of aquacool_2000 and in the belief that he could not be found out posted comments on the Net which did not meet his employers approval to put it mildly!

His employers successfully managed to sub poena (a writ demanding appearance in court) Yahoo! to reveal the real identity of aquacool_2000 and in the process John Doe lost his job. (Another issue that this case raised was John Doe's right to anonymity but more on that later)

Since most Internet service provider's and the various e-mail and chat services on the Net are bound by contract not to make available any personal information about their customers hence American law binds the party which is aggrieved to first prove to the satisfaction of the court the validity of their grievance and only then if the court believes that their is a prima facie case is the defendant's identity revealed.

John Doe cases have become commonplace in America especially by big corporations which fear a loss of face vis-a-vis their customers by way of comments made by unknown defendants on cyberspace message boards. It has been seen that in most such cases the defendants have been employees of the corporation. In another interesting case that came up for hearing before the Supreme Court of Virginia both the parties were litigating anonymously.

This was also a case of cyber defamation where the corporation, which had been defamed, argued that it would be put to grave economic loss if it were to reveal its identity. The corporation had won the right to sue anonymously in the lower courts but the Virginia Supreme Court said that the such permission could only be granted if it could prove that it would suffer exceptional harm, such as social stigma or extraordinary economic losses as a result of revealing its identity which it had failed to prove. After this ruling the corporation dropped the case.

The original John Doe case also led to another issue: the right of the Net user to "Freedom Of Speech and his Right To Privacy." Civil liberty groups in America are crying themselves hoarse to safeguard the Netizens right to privacy. A number of hard fought legal battles have helped formulated some much needed precedent in the field. The issue is simple; the Net has inherent in its nature a sense of anonymity, which has on more than one occasion made people give up their pretensions of civil behaviour. What then is the thresh-hold beyond which the right to privacy is no longer a reasonable argument? The thresh-hold would differ from country to country depending on their legal framework.

In India's first case of cyber defamation, a Court of Delhi assumed jurisdiction over a matter where a corporate organisation's reputation was being defamed through e-mails and passed an important ex-parte injunction. In this case, the defendant Jogesh Kwatra being an employee of the plaintiff company started sending derogatory, defamatory, obscene, vulgar, filthy and abusive e-mails to his employers as also to different subsidiaries of the said company all over the world with the aim to defame the company and its Managing Director, Mr. R K Malhotra.

The Virginia case was initiated in the state court in Indiana in February 1999. The plaintiff company alleged that five unidentified "John Does" whom the company believed were current or former employees had made comments on the cyberspace message board that were either defamatory or violated employment contracts. The state court accepted the company's explanation that it was not in a position to reveal its identity without risking "irreparable harm," and allowed it to proceed anonymously until the defendants had been found out.

With this preliminary victory the company then proceeded to get an official sub poena against America Online (AOL) to reveal the names of four defendants who had AOL accounts. AOL refuted the anonymous plaintiff's right and after losing in the Virginia trial court approached the Supreme Court of Virginia where it got a favourable ruling.

The AOL lawyers successfully argued that sub poena powers of a party to a suit must be subject to public scrutiny except in rare circumstances.

Many civil liberty groups have hailed the Virginia Supreme court ruling but have warned that the there is much more that needs to be done to protect the Netizens right to free speech and anonymity.

The Electronic Frontier Foundation (EFF) a non-profit organisation committed to the cause of "online civil liberty" and "greater Internet freedom" has also been vigorously espousing the cause of anonymity and freedom of speech. In a separate legal battle, which EFF carried out against Medinex Systems, Inc., the company agreed to dismiss its suit intended to unveil the identities of 14.

"John Does" who took part on a Yahoo! message board devoted to discussions about the company. EFF successfully argued that the anonymous had a right to express their view online without fear of arbitrary disclosure of their identity.

Mankind has always had to pay a price for the technology he invents. The Net has changed our lives dramatically. It is our window to the world. It has knit the world community in a fashion which was unfathomable till a few decades ago but like any other technology it needs to be regulated properly but no matter what steps may be taken John Doe will always be lurking around in cyber space for all times to come!