Rethink the 'Talkback' Ruling

Many court rulings have addressed the question of whether those who post comments anonymously should have their identities revealed.

The Supreme Court last week helped clear up an issue that has been bothering the courts over the past few years, as use of the Internet proliferates accompanied by readers' comments attached to articles on various sites.

Many court rulings have addressed the question of whether those who post comments anonymously should have their identities revealed, because many people would like to sue them for libel and invasion of privacy. Attempts to reveal people's identities through Internet service providers have reached the district courts. Various rulings have set various criteria and have left matters unclear. Only last Thursday, almost three years after someone requested that he be able to appeal a case decided in a district court did the Supreme Court hand down a precedent-setting ruling that will bind lower courts - something we have been awaiting for three years.

The Supreme Court was supposed to decide among various positions. Some justices thought a surfer's identity could be revealed only if there were concerns that he had committed a criminal offense such as libel with malicious intent or incitement to racism. According to another approach, it was sufficient if there were concerns that a civil wrong had been committed; for example, libel without malice. A third approach held that the court should have a series of tests at its disposal to decide on exposure. These tests would include the intensity of the remarks, the extent to which they were disseminated and how malicious they were.

Many people were surprised by the Supreme Court's ruling. In the end, it did not adopt any of the above approaches that would allow the court to order an Internet service provider to reveal the identity of an anonymous "talkbacker." The court ruled, in an opinion by its vice president, Eliezer Rivlin, that Israel's judicial framework does not make it possible to submit a suit whose rationale reveals the writer of an anonymous comment, because no explicit legal instruction exists to this effect.

The approach of the vice president, and of Justice Edmond Levy who joined him in the majority ruling, deserves praise; it is based on the great importance of freedom of expression when it clashes with other social interests such as the individual's right to a good name.

In addition, the ruling establishes the importance of the Internet, which is shared by all as "the new town square," and the right to privacy and anonymity. A minority opinion by Justice Elyakim Rubinstein recognizes the court's authority to use its judgment and order that anonymous surfers be revealed, as is accepted practice in many democratic countries, even if there is no law to this effect. This opinion, however, still stresses the right of a person to keep his good name, while placing conditions and limits on the exposure.

The appearance of anonymous comments is relatively new, but it is not at all clear that it requires new legislation. The minority opinion is also convincing, and it seems that the court had all the means to make a clear decision, as the lower courts have done over the past few years. It may be that in light of its decision, the Supreme Court should rehear the case.