Download This PaperUnmasking Anonymous Online Infringers of Personality Rights: Questions Arising in International Contexts
17 Yearbook of Private International Law pp. 181-208, 2015/2016
28 Pages Posted: 30 Apr 2020
Date Written: February 28, 2016
Abstract
When a defamatory content has been posted on a website, the injured person may wish to seek an injunction or damages against the author. But if the author has acted anonymously or pseudonymously, the injured person may first need to unmask him or her by seeking orders against the internet service providers (ISPs) demanding disclosure of the information which allows for the identification of the author. More specifically, it may be necessary to demand the content provider (the host of the server or website) to reveal the internet protocol (IP) address used to post the offending content and the time stamps of the post. With a query and response protocol called WHOIS, the IP address allows for the identification of the internet access provider used. That provider may then be requested to check its log of IP addresses and time stamps to ascertain the matching subscriber and to reveal his or her name, the idea being that the subscriber is likely to be the author.
This article will consider questions related to conflict of laws which may arise in the international dimensions of the process outlined above. They are questions of choice of law, personal jurisdiction, jurisdiction to prescribe and the cross-border enforcement of disclosure orders. What questions arise and how they arise differ depending on the precise approach taken in the process outlined above. This article will, therefore, compare and contrast the approaches taken in Japan, France, United States and England. The analysis of this article is equally applicable to the online infringement of other personality rights such as the right to privacy, portrait rights and publicity rights.
Keywords: Conflict of Laws, Private International Law, Personality Rights, Defamation, Privacy, Portrait Right, Publicity Right, Anonymity
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