Wednesday, 11 April 2012

How anonymous are we and is anonymous accountable?

How anonymous are we and is anonymous accountable?

Social Networking

Social networking can no longer be looked upon as novel. The idea has inculcated itself in the fabric of modern society. I do not believe it can be regarded as trivial and will, in time, be an area of legal practice that is not unique or niche.

Traditionally, Africa, and South Africa, have been a back water in the area of law that can broadly be defined as technology law. The reasons are obvious but include a lack of necessity. That necessity is now probably upon us humble Africans, and more particularly, us South Africans.

Facebook and Twitter are two of the most prominent social networking websites. Statistics vary slightly but the latest data reveals that Facebook has 845 million active users. Twitter is said to have around 140 million active users. Both organizations are worth billions of dollars and dominate popular culture and main stream media. From politicians to sports persons to businesses, social media has engulfed us all.  It's here to stay, whether we like it or not.


How many of these users are located in Africa and South Africa you may ask. It is always difficult to produce a precise figure due to the fluid and variable nature of the data.  This notwithstanding, there are a few recent polls around.  An ispos Reuters poll, dated March 2012, shows that seven in ten South Africans use Social media. This is a staggering statistic considering that South African social media usage is similar to countries such as Russia, Sweden and Spain.

A February 2012 study by Portland Communication, How Africa Tweets, shows that South Africans are the most regular Twitter users in Africa with a quarterly total (Q4, 2011) of over 5 million tweets.  The rest of the African continent is not too far behind with countries like Nigeria, Kenya and Morocco generating over 3 million tweets in the same period.

It is undeniable that social media on the African continent is on the rise, particularly in South Africa.

What next?

Societies' natural inclination towards conflict will naturally exhibit itself online in a social media context. This may range from comments about work environment or colleagues, defamatory statements about character, corporate statements or even advertising.

In the United States and the United Kingdom case law and legal precedent is developing in the broader field of technology law. Critical questions around privacy and accountability are starting to be answered.  An ex-professional New Zealand cricketer won a Twitter defamation case in the United Kingdom.  Questions are being asked of employers seeking employees’ Facebook account user names and passwords.  Controversially, the Manhattan District Attorney has subpoenaed Twitter account information in a criminal matter.  This area of law is developing quickly.  It has very little choice.

Onto the African continent, and South African (with the necessity principle mentioned above in mind) has been slow to adapt.  A South African technology lawyer has accused South African lawyers of lacking foresight and being overly focused on a text and rules based system. 

In South Africa’s defence, there have been changes in civil procedure to introduce electronic pleadings (legal documents) and the introduction of legislation to cater for the ever increasing e-commerce society we find ourselves in. However, the development has been laborious and is lagging behind South African societies’ ever increasing need to conduct business and social activity online. 

Does anonymous exist?

No longer is the internet and social media the sole domain of teenagers or fame obsessed celebrities. The idea of anonymous behind the safety of a keyboard is over (if it ever existed). Anonymous does not really exist.  He or she has a verified IP address, account details with an internet service provider and social network website/s.  He or she has various other personal and public details readily available. Subject to certain software available, anonymous does not really exist on the internet, particularly in a legal dispute. That answers my first question in the title of this article. 

Onto the second question – is anonymous accountable? A slight misnomer considering I believe anonymous does not exist.  However, anonymous is a real person behind a computer and he or she is accountable for his or her actions – whether in the “real” world or online.

The legal issues that may arise online, as in the "real" world, are endless. Consider over 5 million statements or opinions online every 3 months – and this only takes into account one form of social media in South Africa, Twitter.  Consider the millions of transactions, statements, advertisements etc. on the likes of Facebook, Youtube, Google +, Pinterest et al. Granted, a large proportion of these statements, opinions and the like will be mundane and completely lawful but the proportion of offensive and potentially unlawful activity will continue to increase exponentially and is an issue that is becoming increasingly prevalent.

And now?!

I have purposefully left a number of issues open in this article and will endeavour to revisit those that have particular relevance to online legal issues affecting South Africa and beyond. 

A query starting to emerge more and more regularly is that of online defamation.  In other words, defamation on Twitter or Facebook.  The next article will focus on defamation online and practical solutions to solve these issues.  

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