WHY A REAL NAME POLICY FOR ONLINE COMMENTS MAKES SENSE (EXCEPT WHEN IT DOESN'T)

The debate about anonymity on the internet has raged since the advent of the internet. The debate usually pits free speech advocates against proponents of civility and accountability with both sides approaching the issue with an all or nothing mentality.  The  past few years, however,  have witnessed a growing trend among website owners to require persons to use their real names in order to post or comment online.  Facebook, YouTube and  Quora are just a few of the more notable websites that have recently joined this trend. One commentator has even  advocated a mandatory internet-wide real names policy.  This post identifies the main arguments for and against a real name policy and sets out the authors view as to the proper policy that should be adopted.

                          Promoting Civility & Insuring Accountability

Advocates for requiring a person to use their real name (or at least a recognized user name) primarily argue that such a policy raises the level of civility and quality of discourse on the internet, fosters accountability, discourages trolls and abusive posts and provides valuable contextual information for the reader to assess the post.  Persons who are defamed anonymously are often unable to seek judicial relief because the wrongdoers are anonymous.   And, there are numerous example of persons abusing their power and avoiding accountability for what they say by hiding behind the cloak of anonymity.   The poster child for this latter concern was the U.S. Attorney in New Orleans, who was a highly respected attorney and one of the longest serving U.S. Attorneys in the country, but resigned in December of 2012 when it was discovered that two of his top deputies were using the internet to anonymously attack persons their office was investigating.   Another example is the Cleveland, Ohio State Judge who made anonymous comments about several high profile cases that were pending before her and then sued the paper when she was outed.  Slate Senior Editor Emily Bazelon reflects the views of many when she argues that a free democracy is better off when everyone is forced to put their name to their words, noting that online anonymous users are poisoning civil discourse with their vile and defamatory comments, all under the excuse of "free speech."   4Chan, Whisper, Yik Yak and other anonymous sites have become vehicles for racist, misogynist and generally hateful commentary without any accountability.

                       Protecting Whistleblowers & Fostering Robust Speech

Proponents of anonymity acknowledge that abuses may sometimes occur, but argue that anonymous speech has a long and hallowed tradition in our country and, indeed, enjoys constitutional protection.  Absent anonymity, speech will be unnecessarily chilled, they argue.  How many abused women, whistleblowers and political dissidents will come forward if they must do so using their real names?  Anonymous Facebook and Twitter communications were essential during the Arab Spring and anonymity allows victims of domestic violence to rebuild their lives where abusers cannot follow.  In a recent post, David Maas of the Electronic Frontier Foundation identifies 16 different groups of persons who benefit from anonymity besides trolls and political dissidents. Maas argues that anonymity is important to anyone who doesn't want every facet of their online life tied to a Google search of their name.  He focuses on the free speech promoting aspects of anonymity when he argues " To suggest anonymity should be forbidden because of troll-noise is just as bad as suggesting a ban on protesting because the only demonstrators you have ever encountered are from the Westboro Baptist Church—the trolls of the picket world.

The website geekfeminism.org has created a Wiki which compiles a list of persons harmed by a real names policy.

Some commentators argue that anonymity actually promotes truth and trustworthiness on the internet. http://irevolution.net/2013/10/22/trustworthiness-and-truth/.  And, of course, review sites like Avvo and Yelp depend on anonymity to encourage users to give candid reviews of services and products and have vigorously defended the right of anonymity by resisting efforts to unmask the identity of site users.  Although courts have generally been supportive of protecting the anonymity of online reviewers,  there have been some exceptions, particularly when a plaintiff claims he or she has been defamed by a false review or that the reviewer violated a term of employment.  For examples of recent court rulings in this area see  here, here, here, here and here.

Traditional media, who are struggling to adjust to the online world, have adopted various approaches.  Some newspapers allow anonymous comments, but editors moderate all posts by reserving the right to delete comments that violate the papers posted community guidelines, such as no racist, sexist or personal attacks.  KSL TV follows this approach in its Comments Policy.  This is labor intensive, however, and with the economic challenges traditional media, this approach has lost favor of late. The Salt Lake Tribune allows opaque user names, but you are required to have a real email address in order to open an account which is a prerequisite to posting comments.  Comments are not moderated by Tribune editors, but are subject to being deleted if they violate the Tribune's terms of use.  Other newspapers permit readers to self police the comments by allowing readers to give a thumbs up or thumbs down on each comment.  If a particular comment receives a certain number of down votes it is removed.  With Facebook's ubiquity and the ability to log onto a site via Facebook, many newspapers allow a commenter to check in with Facebook and have reported that such a policy has improved the quality of comments.

                           Anonymity, But With Potential Accountability

 While it certainly is well within the rights of any website to dictate its own terms of use, I place my thumb on the free speech side of the scale when it comes to anonymous speech.  We unavoidably stifle and restrict free expression when we rule out anonymous statements.  That does not mean that anonymous posters should be given free reign to libel and attack others with impunity; it just means that they have the right to speak anonymously and they must be willing to accept the consequences in the event their identity is discovered.  In today's increasingly transparent world, it is becoming very difficult to be truly anonymous in the face of a persistent effort to learn someone's identity.  Moreover, there are existing legal processes that allow a judicially compelled disclosure of identity when certain legal threshold showings are made.  In my view, this regime (allowing initial anonymity with judicially compelled disclosure under certain circumstances) strikes a reasonable balance between the competing interests.