What Happens Online, Stays Online... Or Does It?

One of the things people like about the internet is that it is perceived to provide anonymity. However, a recent decision of the Queensland Supreme Court serves as a reminder that your activities on the internet may not be as anonymous as you think. A father was sentenced to 12 months imprisonment, wholly suspended for three years, for publishing insulting material online about his child's school, in breach of a court order and undertakings to the Court.

This article is republished from Maddocks on Gizmodo Australia with permission.

Background

The respondent in these proceedings was the father of a child at Emmanuel College (the School). He had separated from, and subsequently divorced, the child's mother. Following the separation, the respondent was involved in disputes with the School over various matters. Eventually, the School commenced proceedings against the respondent.

During an application for an injunction in November 2013, the Court ordered that the respondent was restrained from, amongst other things, publishing or causing to be published any comment about the School, its officers, employees or agents. The Registrar also made a number of undertakings on the respondent’s behalf (given the respondent himself failed himself to give the undertakings) including that:

  • all material published at the respondent’s behest on the internet about the School would be removed
  • the respondent would do all things necessary and use best endeavours to ensure that internet service providers and search engines remove all content (including cached content) he had published about the School
  • the respondent would refrain from making or publishing any further comments about the School
  • the respondent would not institute proceedings against the School unless he sought leave from the Queensland Supreme Court as if he were subject to an order under the Vexatious Proceedings Act 2005.

On 18 June 2014, the School brought an action against the respondent claiming that he had breached the undertakings and court order by uploading online content attacking the School between December 2013 and June 2014.

Some examples of the content that the School claimed the respondent had uploaded are:

  • publishing videos about the school on youtube
  • creating various websites with names such as www.emmanuelcollegesucks.info, www.thedumbschool.info, www.theevilschool.info and www.shutdownemmanuelcollegegoldcoast.info which published articles such as:
    • 'Emmanuel College Gold Coast High School Canteen Poisons Students'
    • 'Emmanuel College Gold Coast Students are ****ing retarded'
    • 'A Haven for Paedophiles – Emmanuel College Gold Coast'
    • 'Emmanuel College Gold Coast – Drug Capital of the Gold Coast'
    • 'Australian Securities and Investment Commission (ASIC) Investigates Emmanuel College Gold Coast and directors.

The respondent allgedly also made a number of assertions, including that:

  • the principal was a sexual predator
  • the School discriminated against separated/divorced parents
  • the School sent him bankrupt by not permitting him to withdraw his child from enrolment.

The Queensland Supreme Court ultimately found that the respondent had breached the Court order and undertakings. The respondent had gone to some length to conceal his involvement with the online content, and it is worth noting how the Supreme Court concluded that the respondent was responsible for the content.

Connecting the content to the respondent

None of the online content in question was published under the respondent's name, so how did the School trace it back to him? Much of the content was registered with an email address containing the name of the proceedings.

The Court determined this email address was managed by the respondent because he had submitted as evidence an email he sent to that email address (from another email address) requesting all the infringing content be taken down. Upon which, all the content was almost instantaneously removed.

When questioned about how the respondent was able to arrange removal of the content simply by sending an email to that address, the respondent submitted that it must have been a coincidence. The Court did not mince words: '[t]his unlikely explanation strains credulity and must be rejected'.

The YouTube videos were connected with the email address described above and also uploaded the same videos the respondent had previously published under a different handle. With respect to the websites, the domain names were registered under different names, none of which were the respondent's name.

One domain name was registered in the name of a company for which the respondent was the sole director and shareholder.

The other domain names were registered in the names of individuals. However, White Pages searches revealed that there were no such individuals residing in the suburbs listed. There were also various inconsistencies in the street addresses associated with the domain names, leading to the conclusion that the addresses were fake. For example, some post codes provided did not exist, or did not match the suburbs provided, or the suburbs or street names did not exist, or the street name did exist but did not include the house number.

One unifying feature for all the websites was that the domain names were associated with the same email address. You guessed it... the respondent's email address discussed above.

Additionally, many of the websites were 'mirror' websites, that published identical content at the same time. Accordingly, if one of the websites was tied to the respondent, it was likely all of them were. The same IP addresses were also used for many of the uploads.

The Court held that the only 'rational inference' was that the respondent published the websites and uploaded the videos to youtube. In light of the above, the Court found the respondent in contempt of the court order and in breach of the undertakings.

Sentencing

What makes this case all the more surprising is that the respondent was a solicitor. The Court found:

'[the respondent] was in a position to know what he was doing. He was a practising solicitor with expertise in information technology which enabled him to post the material and hide to a certain extent what he was doing. As a solicitor, he was more than ordinarily aware of the need to comply with orders made by and undertakings given to the court.'

The respondent's conduct was found to be wilful and deliberate, not casual, incidental or unintentional. The Court noted that the purpose of penalties in cases such as this is both to punish the contemnor and deter him from future offending behaviour. The respondent was sentenced to 12 months imprisonment wholly suspended for a period of three years. Indemnity costs were also awarded against him.

Conclusion

Many people think that what they do online can't be traced back to them. However, this case clearly demonstrates that what you do online doesn't necessarily stay online, even if you have published content anonymously or under a pseudonym. It also shows that the Courts are prepared to hold individuals accountable for their unlawful online behaviour.

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