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Lesson 38 - Libel 7:

Injury to a Pseudonym's Reputation?

IBEX, from a few messages ago, is a real character. He appeared in an online discussion group in a cyberlaw class that one of us taught. When he appeared, he was not very nice. His contributions were harsh, and direct, and people in the online community were angry about them. Many were angry he was appearing with a pseudonym, rather than using his real name. IBEX defended his use of a pseudonym, claiming he had a right to speak without fear of retaliation. After a brief and furious exchange with members of the class, IBEX disappeared. For a few days, all was quiet.

Then IBEX returned. This time, however, IBEX was not just harsh. This time, he was plainly offensive. IBEX had become a hateful and vicious character, insulting members of the community and in one case, doing real harm by revealing confidential facts about one class member's background. Once again, but now to a far greater extent, the community was outraged. And once again, IBEX went away.

But again, IBEX came back. This time, however, IBEX was the angry one. For IBEX claimed that the second IBEX (IBEX II) was a fraud. He claimed that the vile IBEX II was not him, and that the person who had taken IBEX's name had "defamed" IBEX through use of the online identity. IBEX (still quite harsh and generally unpleasant) demanded an apology from the person who had made him seem vile to others in the community. IBEX had, IBEX claimed, been wronged.

Was he? Let's start with a simpler case: Imagine you send a letter to the editor of the New York Times, pretending to be one of us. In that letter, you give an analysis of the recent Communications Decency Act. Imagine the letter is published, but that it is a terrible legal analysis. Imagine it makes basic mistakes in applying constitutional law (so basic that even we wouldn't make them), and generally makes us appear to be fools. Have you defamed us?

If you have harmed our reputation, then defamation law protects us. And the same should be true online - maybe even more so. One troubling feature of cyberspace is the problems with identity. It is often easier in cyberspace to fake someone's identity, and therefore easier as well to steal someone's identity. If you steal someone's name, and then say things that cause harm, we expect a court would find you liable. This is different from merely taking a pseudonym: Merely using the name "Snowflake" doesn't harm anyone, so what you say as "Snowflake" isn't automatically actionable.

But what then about IBEX? Well, conceivably IBEX would have a claim against the fake IBEX, for certainly the real IBEX's character has been harmed by the fake. In principle, that is, a pseudonym may deserve as much protection as a real name does. This remains for now a point of some uncertainty.

Next time: Can you defame a company (and get away with it)?


authors:
Larry LessigDavid PostEugene Volokh



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