D2.2: Set of use cases and scenarios

Title: CASE N° 3: PESSERS VS. LYCOS IN THE NETHERLANDS

Case n° 3: Pessers vs. Lycos in the Netherlands

This case very much sounds like the Ouvaton case. However, there is a difference: This is a purely civil case. There is no criminal prosecution at all: A private party is seeking for damages and compensation because harm was done to him on a public website. The facts were - in short - the following: Someone created an anonymous website on which he or she anonymously accused another person (who was an on-line post stamp seller) of illegal practices on Ebay. The person, accused of illegal practices, sent an email to the anonymous website asking for the wrongful accusations to stop. He never received an answer. He then asked the ISP to provide the name and address of the person who holds the anonymous website. 

The ISP refused to do this because it is confronted with a dilemma: If it provides the identity of its customer and had not the right to do this, it is infringing the law; however if they don‘t provide the identity while they should have done so, they infringe the rights of the person that requested the information. In the end, providers don’t want to play private police and don’t want to have the responsibility to investigate every demand for de-anonymising a client, both because this is not their business and because will cost them a lot of money.  

The accused person sued the ISP to obtain the name and address of the accusing person and won the case two times: in first instance and in appeal (Court of Amsterdam, 24 June 2004). The case is actually pending before the Supreme Court of the Netherlands.

This case is in fact about what is called conditional or recoverable anonymity and the right to speak anonymously. Two things are interesting in this case: Firstly, the identity had to be provided to the third party in a civil case where there was no speaking of a criminal investigation. In this sense, it importantly differs from e.g. the Verizon and the Ouvaton case (in which however, the personal data are used anyway for civil purposes…). Secondly, the court developed a so-called “four-steps’ test to decide whether a client’s identity should be revealed or not. It is this “four steps test” that may turn this case into a landmark case, provided the SC accepts these steps as a valid set of criteria.  For the ISP, the four steps leading to obligation to disclose it’s customer’s identity are:

1. the possibility that the information, as such, is illegal and harmful towards a third person, is sufficiently plausible;

2. the third person has a real interest in the acquisition of the data; 

3. it is plausible that, in the concrete case, no less infringing possibility exists to retrieve the data; 

4. when weighing the interests of the third person (the one seeking for the identity of the person that accused him) should prevail over the interests of the service provider and the website holder (the anonymous person). 

While the law on anonymity is not clearly crystallised, judges can decide and in fact define in which cases and under what circumstances anonymity (and privacy) should be limited. Cases like this (can you remain anonymous? what can you do anonymously? when will your identity or aspects of it like your location, etc… be revealed?) are of major importance when one takes into account the Draft Framework Decision of 28th April 2004 of the Council of the European Union, which creates a rule that providers of a public communications network or publicly available electronic communications services must retain all traffic data, location data, user data, subscriber data, sources - routing - destination – time & data – duration - place and device of communication for a minimum period of one year and a maximum period of three years.

However, in these types of procedures, another interesting problem remained: The anonymous person had no right to defend himself before court when the revoking his anonymity was discussed. As far as we know, this issue is not solved yet because in many legal systems, people can not anonymously intervene as a party before court.