Mothership Explains: Can an anonymous social media account protect you when making allegations about someone?

There are various legal proceedings which may result in the identity of the admins ultimately being revealed, if their accounts are used to publish statements that attract a lawsuit.

Nigel Chua | October 17, 2021, 09:27 AM

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Social media feuds are nothing new to anyone who follows local news.

The latest edition of what some like to call a "saga" involved local content production company Night Owl Cinematics (NOC), its co-founder Sylvia Chan, and the anonymous social media account admin(s) with the handle @sgcickenrice, which sparked the whole fracas.

Those following the developments might have noticed a familiar story arc: After all the sound and fury of public revelations, public statements, public lawyer's letters, and lawyer's letters made public, there are often public apologies, and sometimes, reconciliation (or not).

Public feuds, private legal proceedings

What often goes on in private, however, are legal proceedings.

What's at stake? Rights, vindication, and sometimes, compensation for physical or emotional damage.

And once the lawyers (and sometimes, law enforcement) get involved, it's not uncommon to hear public figures — who live with much of their lives out in the open — decline further comment, because of an ongoing investigation, an ongoing court case, or both.

What happens, however, when one or more parties are anonymous, as in the case of the @sgcickenrice admin(s)?

To find out more about what might be happening behind the scenes of these public social media sagas, Mothership spoke to disputes lawyer Shaun Leong, who is a partner at Withers KhattarWong.

Can anonymous parties escape legal liability?

The short answer to this is no — Leong explains that the legal implications for someone making anonymous allegations about another party are no different from a case where the allegations are not made anonymously.

Potential criminal proceedings

First of all, if any laws are broken because of the allegations — such as the law against harassment, for example — then the police can get involved. Needless to say, the police has wide-ranging powers to investigate offences, and can request social media platforms to disclose relevant information for their investigations.

By the time a criminal prosecution is brought by the state, the prosecution would have the identity and personal information of the admin(s), explains Leong.

Criminal charges are mentioned in open court, and is considered a public hearing. The names of the accused will be published on the court's hearing list online.

Of course, the above is only relevant if law enforcement gets involved, after a crime (or suspected crime) has been committed.

Potential civil lawsuit

Aside from criminal proceedings, a civil lawsuit can be brought against the anonymous parties who make public statements and allegations.

The person making these statements could potentially be sued for reasons including defamation, harassment, or even committing a civil wrong (or, what is called a "tort" in legal language) by spreading malicious falsehoods.

The person being sued would then have to argue their case. With a defamation suit, for example, the person would need to prove that the published posts or statements were true statements of fact, statements of opinion based on facts, or that the publication was made without malice and in the public interest.

But what if the anonymous party simply ignores lawyer's letters, or remains silent?

If the admin of an anonymous social media account does not respond when sent a lawyer's letter, they could be creating more trouble for themselves.

The matter can go to court even without the anonymous parties being identified.

"It is theoretically possible to commence an action in the Singapore Courts without knowing the name or address of the person(s) behind an anonymous social media account," explains Leong.

If the person(s) cannot be identified, the Court is able to grant permission to allow court documents to be validly served via the "direct message" function of Instagram, or a similar contact channel on a social media platform.

And as the legal case progresses, the anonymous parties may be ordered to come forward.

After a Court suit is commenced, the Court has the discretion to order the admin to appear before the court in person to give evidence in court, for example.

Failure to do so could result in sanctions for contempt of court, unless the person has good reasons for not appearing.

Can anonymous parties just choose to remain anonymous throughout legal proceedings?

In the case of @sgcickenrice, the admin(s) remained anonymous even while responding to the letter from NOC's lawyers.

They sent back their own legal letter from their pro bono lawyers, Eugene Thuraisingam LLP, and published a copy online for public viewing.

But in such cases, anonymity might not last forever, especially if a court case commences.

There are technical legal processes that lawyers can use to get information that they need for a lawsuit to carry on.

For example, a lawyer could use pre-action interrogatories, which are requests for information that can have the force of a court order.

If approved by the Court, interrogatories may be served on persons who appear to be related to, or appear to be in recent contact with the admin of the account, to compel disclosure of relevant information, Leong explains.

If, for example, an anonymous admin is seen speaking to someone in an Instagram story, that someone could be served with an interrogatory and asked to disclose the identity of the admin.

A regular commenter on the anonymous account's posts could also be served with an interrogatory, if it appears that the commenter knows the admin.

Thus, Leong explained, the Singapore courts have the power to order that information such as the identity of the admin must be disclosed.

The party who started the legal action can also write to the relevant social media platforms requesting the disclosure of identifying information.

Leong puts us in the shoes of the social media companies to try and see how they might deal with such requests:

How would social media platforms deal with requests to identify anonymous account admins?

First of all, social media companies would usually only share information if a court order is obtained — to do so otherwise may be in violation of the Personal Data Protection Act (PDPA).

But even with a court order, the social media platform could potentially be concerned that revealing personal information would breach its user agreement.

Thus, the social media platform could ask the party who wants it to reveal information to first sign an indemnity — basically an agreement to pay compensation to the social media platform, in the event that the anonymous user sues the social media platform for disclosing their personal information.

Another consideration that the social media company may have is its own legal liability.

When an anonymous user has made statements which are potentially defamatory and/or harassing, the company may also end up getting sued as a co-defendant to the lawsuit, for its role in facilitating the publication of these statements, and amplifying them to users online.

Thus, to avoid facing such legal action, the company may decide to disclose the information requested, and may ask to be given assurance that it will not be sued for its involvement in the matter.

What about anonymous accounts created with fake personal data?

Suppose the social media company does disclose the anonymous user information, but the information turns out to be fake, or does not directly link back to the actual person(s) responsible.

For example, the user account could have been created with fake names and/or fake contact information.

But Leong suggests that "in this digital day and age, it is almost impossible to be totally anonymous."

"The reality is you leave digital footprints every day from the very moment you wake up and use your phone. Metadata, which is data about data, is created all time.

Whether anonymity can be uncovered really depends on how much data you can piece together. The relevant internet service providers and social media platforms could have access to such data."

Thus, someone who is really determined to uncover the identity of their anonymous accusers can repeat the process of obtaining a court order, with each service provider that may have relevant information.

This process may be time-consuming and expensive, but the costs can be passed on to the anonymous party.

This would be done by writing to the account admin to request that they disclose their identity, while notifying them that if they refuse to disclose identifying information, the individuals may be liable for the costs incurred in any subsequent court proceedings to compel disclosure.

Whether these costs eventually get paid by the admins, however, depends on whether the court orders them to pay the other side's legal costs, and whether they even have the means to pay.

What's next in the NOC case?

While how the case develops from here remains to be seen, it is likely that the identity of those behind @sgcickenrice will be revealed if the matter does go to court.

It's not clear whether NOC will be moving ahead with legal proceedings mentioned in their lawyer's cease and desist letter to @sgcickenrice, dated Oct. 11.

But lawyers for @sgcickenrice have replied stating that they will "respond substantively" to the cease and desist letter.

Leong's take on the matter, however, is that out-of-court settlement should be considered — especially when those involved want to remain anonymous, and/or minimise damage to their reputation.

One way to do so would be through mediation.

Leong explained how this might work:

"In a mediation, parties can jointly appoint a mediator.

A mediator cannot decide on the dispute, but would be able to share perspectives that neither side has considered, suggest compromise that could work for both sides, or even share views on how a case would likely pan out (in terms of prospects of success) if indeed an ugly fight is being brought out in the courts.

A mediator can record a settlement agreement which can in turn be given the force of law where blessed by the Courts via a consent order. There will be substantial costs savings with a mediation."

As Leong points out, pursuing claims in Court "may have the unfortunate effect of publicising allegations made against each other (which could lead to undesirable implications on both sides)."

Mediation, on the other hand, would allow the parties to keep their dispute private and confidential.

Top photo by Chris Yang on Unsplash

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