Anonymous blogger’s ID will be revealed under court order.

Posted by Greg Laden on August 20, 2009
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An anonymous blogger using a blogger.com account created a site called “Skanks in NYC” on which he said obnoxious and offensive things about Liskula Cohen, a former Vogue (etc.) cover girl. A NY Supreme Court judge has ruled that Google (owner of blogger.com) will provide Cohen with whatever identifying info it has about this blogger.

Google has complied with the ruling. Cohen’s legal team intends to use the IP address and email provided by Google under the court order to find out the identity of the blogger and sue her. Or him.

The unidentified creator of the blog was represented in court by an attorney, Anne Salisbury, who said her client voluntarily took the blog down when Cohen initiated legal action against it.

Salisbury suggested that Cohen is more interested in attracting publicity than restoring her reputation. She contended her client’s blog would have languished harmlessly in obscurity had Cohen not filed suit. The site had negligible traffic and only five posts on it, all written on a single day, she said.

Whatever. This case does show that your basic anonymous blogging is not guaranteed.

I should note that the “Supreme Court” in New York State is not the highest court. The highest court in New York is the Court of Appeals.

In her ruling, the judge quoted a Virginia court that ruled in a similar case that nameless online taunters should be held accountable when their derision crosses a line.

“The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions,” the judge said, quoting the Virginia decision.

The defense against this argument is interesting. The blogger’s attorney argues that hyperbolic online name-calling is so rampant that it is run of the mill and normal, and not actionable. That is, of course, an absurd argument that will go nowhere. It is like saying that gangland shootings are so common in some cities they should be considered normal and legal. It is a form of web exceptional ism. I’m sure it won’t hold water.

After the ruling, a Google spokesman expressed sympathy for targets of Internet insult-slinging, but said the company divulges user information only when ordered to do so by a court.

“We sympathize with anyone who may be the victim of cyberbullying. We also take great care to respect privacy concerns and will only provide information about a user in response to a subpoena or other court order,” Google’s Andrew Pederson said.

So, if you are an asshat pseudo on blogger.com, that’s the policy you’ve got to keep an eye on.

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  1. #1 MadScientist
    August 20, 2009

    What policy? There are very few circumstances in which you may lawfully not comply with a subpoena and I can’t imagine how they might apply to anonymous bloggers.

    I don’t see the “aww, come on, it was just a few posts and no one reads it anyway” excuse working either.

  2. #2 Technology
    August 20, 2009

    That’s setting a scary precedent for all bloggers.

  3. #3 KJHaxton
    August 20, 2009

    So, if you are an asshat pseudo on blogger.com, that’s the policy you’ve got to keep an eye on.
    What happens if you are an asshat pseudo blogger on another network, for example Scienceblogs.com. One would assume that personal information would be even easier for courts to obtain…

  4. #4 Stephanie Z
    August 20, 2009

    Companies that have and store this information can absolutely fight a subpoena, particularly when a case is in a fact-finding stage and no wrongdoing has been shown. A newspaper did that recently for a couple of commenters, and the ACLU joined the fight.

    However, most companies won’t take that stand.

  5. #5 Spiv
    August 20, 2009

    “a Virginia court that ruled in a similar case that nameless online taunters should be held accountable when their derision crosses a line”

    This is where I have a problem. What exactly is that line? Calling a celeb an unintelligent, promiscuous canid seems to me to be the kind of personal commentary and opinion that should be protected by free speech. To open that sort of thing up to lawsuit basically says you can sue anyone for any stupid little thing they say about you no matter what.

    The anonymous blogger’s lawyer appears to be an idiot though (oops, I’m going to get sued now). The “I don’t count cause I’m nobody, and this ish happens all the time” defense is not exactly the kind of thing you spend 8 years in school to learn about.

  6. #6 MRW
    August 20, 2009

    I don’t think the “it’s rampant” argument is quite as absurd as you think.

    The crime in a case like this is unjustly causing harm to someone’s reputation. The actual saying of mean things isn’t against the law unless that act causes harm. If saying mean things is rampant online, then I think it’s not absurd to argue that the mean things won’t be taken seriously and therefore caused no harm. I’m not saying that the defense should necessarily win in this particular case, but I don’t think it’s an absurd argument.

    A shooting, on the other hand, doesn’t suddenly cause less injury or death because shootings are common.

    Relatedly, you can’t charge someone with murder if no one dies. But we’ve decided (rightly, of course) to define a different crime – attempted murder. But, there’s no crime (as far as I know, at least) against attempted libel.

  7. #7 MRW
    August 20, 2009

    sorry last sentence should read:

    But, there’s no law (as far as I know, at least) against attempted libel.

  8. #8 Rod
    August 20, 2009

    MRW: It’s either libel, or it’s not libel. Us media pukes use the guideline “Truth is an absolute defense” in assessing whether a story is libelous. That said, I can’t, from personal experience, address issues of Liskula Cohen’s character, demeanor or deportment. She’s a “public figure,” albeit a minor one, and that changes the dynamic; the rules for commenting on a public figure are looser than a private citizen. Usually.

    Spiv: You can sue anyone for anything. That doesn’t mean you’ll win. Calling someone unintelligent could be defended by reviewing that person’s public statements on an issue, comparing those statements to known fact, and drawing a conclusion. Calling someone promiscuous, however, requires a higher level of proof — say, oh, video tape.
    Oh — the line moves. Constantly. Quickly, too.

    Stephanie Z: Most companies will roll over, I suspect, because they’ve done a cost-benefit analysis and determined it’s cheaper to give up the name than pay lawyers to fight the case. Newspapers — I can’t speak for electronic media, I’ve never worked in that industry — are understandable jittery when courts start chipping away at a reporter’s right to withhold identification of a source. I realize some of y’all are going to jump on that “right to withhold,” since some courts have thrown reporters in jail. It’s an ethics thing: If we promise we won’t identify you, we won’t identify you. But the use of anonymous sources is less and less acceptable. After all, reporters sign their work … that’s why I’m using my name, not my nome de Web, on this post … and we believe if you ain’t got the guts to stand behind your words, your words aren’t worthwhile.

    And that, of course, may launch a discussion about whether we should all be using our real names. I dunno; let’s talk.

    But I still say most politicans are asshats.

  9. #9 Greg Laden
    August 20, 2009

    KJHaxton[3]: You may be right. Blogger.com seems to know only an email address. Since the bloggers on Sb are known to the administration (I assume) a subpoena would yield name, social security number, whatever. It is a good thing that we don’t have any asshat bloggers on this network.

    Stephanie[4]: Do they ever win? Did they win in that case that you mention?

    I was surprised in this case that they yielded to the NY court. I would have thought that the blogger’s legal team could have had this delayed to bring it to a higher court. This particular case has an important twist: The ‘victim’ was a public persona. Like Spiv[5] says.

    MRW[6] I see your point. However, we should have an idea of what is something you can do and what is something you can’t do, even if there are grey areas. Forget the murder analogy, and just go to, say, saying nasty things in newspapers. It is not the case that courts in the US give tabloids a break they would not give the new york times.

    The fact that the internet has developed in a way that the level of discourse is somewhat out of control is not, to me, justification of that level of assholery. There may (or may not) be justification for it, but that it is is not reason that it ought to be.

    BTW, if I was blogger.com, I’d roll over in a second. Regardless of loft arguments for or against if a network becomes a place where asshatery is revered or at least common then you’ve got a network of asshats. I don’t think Google wants that. The reason asshole-ness is so common on the internet compared to, say, in bars, is because when it happens in bars someone breaks a glass over your head but when it happens on the internet you get more hits on your blog. If having your blog shut down and/or having to pay damages when you make unfounded material accusations about another person was a real possibility, people may be assholes less often, and thus, with less rhetoric pushing the value of assholeness, there would be fewer assholes.

  10. #10 Spiv
    August 20, 2009

    I used those terms because they’re all subjective. Unintelligent is a relative term. What I consider intelligent probably does not match the national average. Promiscuous is the same: some might say serial monogamy is standard and acceptable, some might say having a partner outside of marriage any time in your life is not, while others may say having a personal harem is just living proper. At the point that the person is clearly in no way promiscuous by anyone’s standard, one can claim Flynn’s parody defense; which is that it’s so absurd that no one could see it as anything but a joke. Canid, well, in the vernacular, I guess your defense could be that you’re sitting in court with the apparently easily offended reactionary who is unwilling to accept or ignore criticism.

    I’m very interested to see just how this individual plans to show that damage had been done to her by this.

    As far as real names are concerned, the anonymity is basically useful for various reasons, even if it is only on face value. It would not be impossible to figure out who I really am, but that effort properly keeps the average gawker from bothering. Helps for nosy noses trying to find my wherabouts or opinions when they really have no business knowing them.

  11. #11 Alcari
    August 20, 2009

    The real question is of course:
    Should you able to commit criminal acts behind anonymity and get away with it? I would say no, but there’s a catch-22 it testing it.

    You’d have to go to court anonymously to prove guilt/innocense, but to go to court, you have to show who you are.

  12. #12 asshat pseudo
    August 20, 2009

    I am reminded of John Gabriel’s Greater Internet Fuckwad Theory.

  13. #13 Comrade PhysioProf
    August 20, 2009

    The defense against this argument is interesting. The blogger’s attorney argues that hyperbolic online name-calling is so rampant that it is run of the mill and normal, and not actionable. That is, of course, an absurd argument that will go nowhere. It is like saying that gangland shootings are so common in some cities they should be considered normal and legal. It is a form of web exceptional ism. I’m sure it won’t hold water.

    This is a woefully deficient understanding of the legal basis for such an argument.

  14. #14 Greg Laden
    August 20, 2009

    I’m sure my readers would welcome actual enlightenment rather than mere snark. If you have it.

  15. #15 Jared
    August 20, 2009

    Wait, did CPP go a whole sentence pertaining to something he disagrees with without using “fuck” once? This merits further study.

  16. #16 Greg Laden
    August 20, 2009

    This is why I’ve asked him back to say more.

  17. #17 Comrade PhysioProf
    August 20, 2009

    For a successful defamation claim, a reasonable reader/hearer must consider the statement to have been a factual assertion about the arguably defamed person. Thus, the argument is that since everyone on the Internet calls everyone else a cockdoucheweaselmonkey/skank/moron/goatfucker/etc all the time and everyone on the Internet knows that these are always intended as hyperbolic opinions, and not factual assertions, then any reasonable reader of the “so-and-so is a skank” blog would know that no factual assertions were being made concerning so-and-so, and the blogger was simply expressing his/her opinion of so-and-so, which is not defamation.

    In my opinion, this is a pretty good argument, and I am surprised that Google didn’t immediately appeal the subpoena.

  18. #18 Greg Laden
    August 20, 2009

    I think it is a crappy argument. The basis of your argument really comes down to the same thing you’ve been saying all along and that I’ve been disagreeing with all along.

    The internet does not come with a special set of characteristics that allow a subset of internet denizens to make up new shit. My original point in this regard, made some time ago, had to do with anonymity. I maintained that anonymity is not protected in any special way just because somebody is a blogger, screams really loud that they want anonymity, with the exclamation points and the elevens and so on after every sentence. There are very few places in US society where true anonymity is protected, and where those rules apply to the internet, then perhaps anonymity is protected in those cases. Otherwise, not.

    It would be like saying “Oh, we just made a club and the whole thing about our club is that we can do X or Y or Z even though courts, police, other legal agents, normally forbid such things.” Saying it just don’t make it so.

    I understand your argument. I fully get that the context is being used here as an interpretive tool, to calibrate. Your argument would be stronger if you thought up some examples. Like, trash talk in a sporting event is not taken literally.

    But it won’t fly because the blogosphere is not a place where society has accepted this.

    I do think there is a much better argument, as I mentioned. You can get away with saying a lot more about public figures, but that is a whole different ball of wax. But there is no special “I’m a blogger therefore I can make offense and you must live with it” argument. Indeed, so far the courts have tended to move in the other direction.

    IMHO. I’m not a lawyer, but what I’m saying makes sense to me. Obviously.

  19. #19 Comrade PhysioProf
    August 20, 2009

    Notwithstanding your opinion that it is a “crappy” argument, it is one that fits quite comfortably within existing defamation law. That makes it quite interesting to me why Google didn’t appeal. Maybe they just have a policy that they will roll over for any subpoena issued by any court of competent jurisdiction?

    BTW, at least one thing you seem confused about is that defamation has nothing to with “offense” to the arguably defamed individual. Defamation is all about what reasonable third parties would think about the allegedly defamed party in light of the allegedly defamatory statements.

    The Wikipedia defamation page isn’t too bad, and it might help clarify your thoughts on this issue.

    http://en.wikipedia.org/wiki/Defamation

  20. #20 Greg Laden
    August 20, 2009

    You’re correct that I’m not being precise in the language, but I do basically get what the verb “to defame” means, and I understand that defamation is in the eyes of the bystander.

    It does not fit, though, with the laws, if the Internet is not analogous to the dugout. And it isn’t. There is a great diversity of communication styles on the internet and a majority of denizens would prefer to keep it down a notch or two.

    There are crazy people on street corners in many major American cities screaming about stuff. If you calibrated what is said amongst people fact to face to them, you’d have a different standard. But we don’t. Same on the internet. We do not calibrate to the crazy screaming wackos.

    I know you are just laying the groundwork for your own defense, and I appreciate that…. Good luck! :)

    Regarding Google’s decision: Nobody ever wins these suits against court orders leading to civil action or legal action, do they? If there was no chance to win, Google would be dumb to even try to win.

    Also, see above, it may well be that Google would prefer to slap the hands of the wackaloons when convenient, just to keep the tone more generally civil on their service.

    Or, maybe Google just got scared when they heard “Supreme Court.” Old NY lawyer trick.

  21. #21 Jared
    August 20, 2009

    So, if I were to, hypothetically, refer to you, Greg, as a “pompous raving lunatic” you could, in that hypothetical, file suit for defamation. Name calling is not defamation, the statements made read more like a contemptuous rant about her behavior using quite vulgar tones. Saying you are a “pompous raving lunatic who gets his rocks off oppressing Republicans” isn’t defamation, stating “She’s a psychotic, lying, whoring, still going to clubs at her age, skank” isn’t defamation, it’s an opinion utilizing vulgarity. Stating “Yeah she may have been hot 10 years ago, but is it really attractive to watch this old hag straddle dudes in a nightclub or lounge? Desperation seeps from her soul, if she even has one” is similarly an opinion of disgust. It isn’t defamation, which asserts false statements as factual. The claim here is that she is “40″ and “goes to nightclubs.” Everything else is a profanity conveying disgust at a “40 year old woman going to nightclubs and dancing.” While this is quite an obnoxious statement implying women of her age are not socially permitted to do such things is nevertheless an opinion. The only question here is whether or not she has, in fact, gone to a night club. We know she is actually just shy of 40…

  22. #22 Comrade PhysioProf
    August 20, 2009

    Thinking about this further, I suspect Google has decided that it is much less costly in time, money, effort, and annoyance to simply have a blanket policy that says, “Given a subpoena from a court of competent jurisdiction for the release of user identifiable information, we will provide the information”, as opposed to assessing the merits on a case-by-case basis.

    Anyway, this case is a loser. Publicly calling so-and-so a “skank” or a “dumbshit stupid motherfucking asshole who doesn’t know her ass from her elbow and is really ugly” is not even close to defamation under current US law. Publicly saying that so-and-so embezzled from her employer or was seen snorting cocaine off the lower back of a male prostitute at Studio 54 could be defamatory, subject of course to a bunch of other considerations.

    And again, I really wonder if you do get the gist of defamation, using as you do words like “screaming”, “crazy”, and “civil”. Those features of verbal utterances have absolutely nothing whatsoever to do with defamation. Defamation is solely about assertions of fact that injure the reputation of their object. It has nothing to with tone, sanity, meanness, civility, or any of things that seem to be your concern.

  23. #23 Greg Laden
    August 20, 2009

    pompous raving lunatic

    I probably wouldn’t have a chance because that accusation is too close to the truth and people thinking that of me does not affect my standing career wise or professional. I would suffer no injury, and I’d probably just get more hits.

    Misogynist racist, for an anthropologist who teaches and writes in gender and race and who is not a misogynist racist, is probably actionable. If I was writing a book on racism and trying to get a publisher, a goole search may result in internet pages that would be both inaccurate and discouraging to that prospect in a material way with a dollar value.

    “Yeah she may have been hot 10 years ago, but is it really attractive to watch this old hag straddle dudes in a nightclub or lounge? Desperation seeps from her soul, if she even has one

    If your statement affects her chance of getting a job she might otherwise get, she might have a chance at getting a law suit started. I don’t know how true/false this isor what the damage would be, obviously it would depend on that, but I’m pretty sure the court does not really care about your opinion, mine, Googles, ore even CPP’s. If you are making the argument that google should not have handed over the info because you think she does not have a case who cares? It is not really up to you or google to decide that. As usual, the conversation moves forward to judgment prematurely.

  24. #24 Comrade PhysioProf
    August 20, 2009

    If you are making the argument that google should not have handed over the info because you think she does not have a case who cares? It is not really up to you or google to decide that. As usual, the conversation moves forward to judgment prematurely.

    Wait! Wut?

    First, in deciding whether to appeal a court order–such as a subpoena–deciding whether their opponent has a good case or not is exactly what litigants almost always do. This happens to be a special case in that Google seems to have a blanket policy of not opposing subpoenas for user identifying information issued by a court of competent jurisdiction.

    Second, are you really saying that this post should not provide a venue for discussing the merits of the court’s decision to issue the subpoena? Is it just supposed to be an opportunity for you to wag your finger at anonymous/pseudonymous bloggers?

  25. #25 Greg Laden
    August 20, 2009

    This certainly is a good venue to discuss the merits.

    Let’s say the police think you murdered someone. They stop you on the street and say “Show us your ID” You can argue all you want, and have any opinion you want, about the evidence they have that you murdered someone. But they can ask you for your ID and you have to give it to them. To argue that you don’t have to, to refuse to give it to them and to sue them for asking, or to challeng their asking in court has nothing to do with the murder charges. It has to do with if they can ask you for this sort of thing.

    The question at hand with Goolge is: If they are asked by an entity with some sort of standing to provide a document, can they say no? It MIGHT be that the nature of a crime would be considered, but this is a civil suit. I don’t think the merits of a possible civil suit that has not been filed need to be taken into consideration should be.

    It does not take much to get basic information. You don’t have to prove that a case is likely to be won, or that a crime is likely to have been committed, or that an award is likely to be made by a jury.

    Regarding: Is it just supposed to be an opportunity for you to wag your finger at anonymous/pseudonymous bloggers? You have never understood, and you have never accurately represented, my position on pseudonymous and anonymous blogging. The degree to which you cant grasp what I’m saying makes me wonder about you. Seriously. You wouldn’t know an ally if it bit you in the head.

  26. #26 the real meme
    August 20, 2009

    @CPP”Defamation is solely about assertions of fact that injure the reputation of their object. It has nothing to with tone, sanity, meanness, civility..”

    In fact, one of the main things a jury is instructed to do in defamation lawsuits is to actually decide whether or not–
    (1) a defamatory statement;
    (2) published to third parties; and
    (3) which the speaker or publisher knew or should have known was false.
    as in point #3 of trial of facts,”civility” is intended by statute to be interpreted by ‘civil courts’ as to what is and isn’t “civil”.

    or any of things that seem to be your concern.http://www.penny-arcade.com/comic/2004/03/19/

  27. #27 Comrade PhysioProf
    August 20, 2009

    It does not take much to get basic information. You don’t have to prove that a case is likely to be won, or that a crime is likely to have been committed, or that an award is likely to be made by a jury.

    To get a subpoena ordering Google to disclose identifying information about one of their anonymous users in a defamation suit!?!?!?!?!? Have you lost your mind!?!?!?!?!?!?!?!?!?!?!?!?

  28. #28 Joe
    August 20, 2009

    I imagine I feel a lot like sciencebloggers do when journalists completely misinterpret an experiment . . .

    I’m a lawyer. Here’s some context:

    1) That the internet has lots of hyperbolic name calling is relevant as a defense. Its nothing like saying gangland murders happen all the time, so they’re not a crime. The point of libel and slander is that someone might think you’re making a factually accurate statement. If the context makes clear that you’re engaging in hyperbole and not a statement of fact, there’s no libel or slander.

    This is true even if we want the internet to be a nicer place, or even if the community of blogs you read is a nicer place. But check out sports or gossip or political message boards some time.

    2) Misogynist racist is almost certainly not actionable because they’ve got such amorphous meanings as to be essentially a statement of opinion. Do you support or oppose affirmative action? Racist and sexist either way!

    3) I haven’t read her statements, but the quotes I’ve seen are almost all cleary, and I do mean clearly, opinion.

    4) Traffic matters to the defense. If no one was looking at the site, there are no damages, a required element to bring suit.

    5) Mad Scientist – the policy issue is that many internet services will fight the subpoena because they don’t want to be seen as ratting out their customers, particularly if there is a weak case. This is one reason why the lawsuits about filesharing weren’t that effective – AOL and crew wouldn’t just give up your name without a fight.

    6) Greg – Google has every right to challenge a subpoena, and ISPs win subpoena battles all the time. Further, you’re completely off-base with regards to what it takes to justify getting information about an anonymous speaker in most jurisdictions. You generally will have to show you’ve got a good chance to win on the merits. We’re very protective of anonymity under the first amendment.

    We don’t want this becoming a tool where you can shut down people from raising controversial views by threatening to unmask them. Many people have legitimate reasons for this – they don’t want clients or their boss or their neighbors knowing their political views. And this isn’t just because their views are evil – the first major use of the privacy doctrine was put to involved allowing the NAACP to keep from giving its membership lists to Klan-dominated states.

  29. #29 Greg Laden
    August 20, 2009

    This is true even if we want the internet to be a nicer place, or even if the community of blogs you read is a nicer place. But check out sports or gossip or political message boards some time.

    I understand what you are saying, but I do not believe that the fact that there are fuckwads on the internet automatically makes all internet communication interpretable in that context. This is a complex place and the more immediate context is important. If the National Academies of Science came out with a potentially defamatory statement about a certain scientist on one of their pages or blogs, I doubt very much that the locker-room/dugout rantings elsewhere on the internet would be considered in interpreting that. Am I wrong about that?

    Misogynist racist is almost certainly not actionable because they’ve got such amorphous meanings as to be essentially a statement of opinion. Do you support or oppose affirmative action? Racist and sexist either way!

    Quite possibly. But such statements, if believed, can cause someone to lose a tenure bid, for instance, or to not be hired for a teaching job. In academia these sorts of things are anti-qualifications and matter.

    3) I haven’t read her statements, but the quotes I’ve seen are almost all cleary, and I do mean clearly, opinion.

    It does look to me a well that she does not have much of a case.

    Greg – Google has every right to challenge a subpoena, and ISPs win subpoena battles all the time.

    Interesting, I was not aware that they won these battles all the time.

    I agree about the importance of having protection in expressing views. I do not agree that the internet has a way of being uniformly or accepted that allows a different kind of communication there than elsewhere, just given that it is “internet.” I still think that the more immediate context (see example above) will matter.

  30. #30 Greg Laden
    August 20, 2009

    Have you lost your mind!?!?!?!?!?!?!?!?!?!?!?!?

    How the fuck do I know, I’m not a lawyer!?!?

  31. #31 Comrade PhysioProf
    August 20, 2009

    Well thank motherfucking god Joe the motherfucking lawyer came by to explain this shit.

  32. #32 MTran
    August 20, 2009

    “I’m very interested to see just how this individual plans to show that damage had been done to her by this.”

    AIUI the victim asserts that she has been damaged professionally, even with pre-existing employers, who have shied away from using her services because of their expressed concern about the contents of the blog and the negative publicity which could be attached to their products or clients as a consequence. That sounds like real damages to me.

    It also appears that the blogger intended to harm the victim professionally and personally, displaying malicious intent. (“Intent” is usually determined by a person’s behavior, not their subjective “state of mind.” So “I was just joking” is not really much of a defense.)

    I dunno, but given the scant information provided so far, I’d expect the victim to “win” if she brings a civil action. Whether that would be a symbolic or monetary victory is another matter.

  33. #33 Jared
    August 20, 2009

    Hey, Greg, this little bit is over, it seems
    http://www.dailytech.com/Verdict+in+Google+Skank+Suit+Could+Have+Broad+Implications/article16034c.htm
    and
    http://blog.taragana.com/n/model-who-sued-google-to-unmask-anonymous-ny-blogger-who-called-her-names-forgives-her-144496/
    also
    http://abcnews.go.com/GMA/story?id=8359356

    The more we learn about this, the more it seems the “defamation” charge is completely bogus.

    Read the ABC one and try not to roll your eyes…

  34. #34 Greg Laden
    August 21, 2009

    MTran, well, that’s interesting. The tide appears to be shifting. You’re not a lawyer by any chance, are you?

  35. #35 MTran
    August 21, 2009

    Yeah, IAAL, but not in New York. I pretty much stick with the federal courts in a business and technology practice. And although I’m not a media lawyer, I think you’ll find that states such as New York and California, where the media and entertainment industries make up a sizable sector of the economy, tend to take defamation, privacy, publicity rights, and public reputation issues a lot more seriously than bloggers do.

    Still, cases are driven by their facts / evidence, and the news reports have been rather useless at providing them. At this point, I don’t think we are very well positioned to know what’s really going on with this matter. That won’t keep us from arguing about it, though!

  36. #36 Greg Laden
    August 21, 2009

    Jason: Over?

    In siding with Cohen, Justice Joan Madden of the New York State Supreme Court rejected the blogger’s argument that “blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions.”

    That veil of secrecy online is now much thinner after a precedent setting ruling by Manhattan Supreme Court Judge Joan Madden forcing Google to turn over the identifiable information it had on a blogger who called former model Liskula Cohen a “skank” among other things in a blog called “Skanks in NYC”…. Judge Madden wrote in her decision, “The thrust of the blog is that Cohen is a sexually promiscuous woman.”

    Yes, they are reporting that the model has “fogiven” the woman who put up the blog, but they are proceding with the court case, she appears to have evidence that her career was affected, and there is a good chance that this case will result in everyone on the internet to be told to STOP RUINING EVERYTHING.

    Starting next week, I’ll have a PayPal button up for the Rehabilitate Comrade Physioprof Before It Is Too Late Fund.

  37. #37 DFWinnahouse
    August 21, 2009

    Lots of people get all irate about perceived slights and want to sue for revenge. Doesn’t make them right. Usually they just look petulantly immature by pursuing their jihad.

    Fascinating to see Laden using bloviating attempted prior restraint intimidation techniques favored by the right wing conservatives he supposedly detests though…

  38. #38 Greg Laden
    August 21, 2009

    Fascinating to see Laden using bloviating attempted prior restraint intimidation techniques favored by the right wing conservatives he supposedly detests though…

    What? What are you talking about?

  39. #39 Comrade PhysioProf
    August 21, 2009

    Starting next week, I’ll have a PayPal button up for the Rehabilitate Comrade Physioprof Before It Is Too Late Fund.

    Is it ok if I just spend all the money on MFJ?

  40. #40 Comrade PhysioProf
    August 21, 2009

    Oh, and BTW: This idea that this NYS Supreme Court ruling is “precendent setting”–one of the new article referred to it that way–is only true in a very, very limited sense.

    It is only possibly binding precedent within NY County, where the particular Supreme Court that made this ruling sits. Supreme Courts in other counties of NY State could rule otherwise, and the appellate courts of the State of NY could obviously overrule any such precedent should it come before any of them.

    And it is not in any way shape or form, of course, binding precedent in relation to the defamation law of any other state in the United States.

    Hey, Joe the Lawyer: Do I have this correct?

  41. #41 Greg Laden
    August 21, 2009

    This idea that this NYS Supreme Court ruling is “precendent setting”–one of the new article referred to it that way–is only true in a very, very limited sense.

    Yeah, I know. as I said above, I think people over estimate that court because they call themselves “supreme.”

    Is it ok if I just spend all the money on MFJ?

    That is exactly what I had in mind!

  42. #42 Comrade PhysioProf
    August 21, 2009

    That is exactly what I had in mind!

    w00t!

  43. #43 Greg Laden
    August 21, 2009

    Well, good, now that we are all on the same drink, er, page, I have a question for those interested, especially CPP and our lawyer friend: Do you think that is it possible to defame someone on the internet? Will there ever be a defamation case that you feel has merit? Or is the nature of the internet such that this sort of thing just does no apply.

  44. #44 Pascale
    August 21, 2009

    I have to say, this discussion was far more interesting and entertaining than I expected.
    First, I believe the “injured party” has already “won.” What do I mean? Well, this is a person whose name I can’t remember after scrolling through the 43 comments following the original post. I do not believe I have ever seen her in a magazine or one a screen; not exactly on the A list, but her name is out there now (even though I don’t remember it). Perhaps this was the actual goal of the lawsuit; I suspect it has generated broader name recognition than any PR campaign.
    Second, there is a lesson to learn here, namely that privacy is an illusion on the internet. We have been told that any email or text message we send never really goes away. Almost any of these correspondence can be recovered and are discoverable. Our IT folks tell us never to write (put into pixels?) anything we wouldn’t want printed in the paper or seen by others. Blogs should probably be seen in somewhat the same way.

  45. #45 Also a lawyer
    August 21, 2009

    I am not the sort of lawyer who would ever litigate a case such as this one, but can say that at this time we have two unidentified individuals making a mainly semantic argument against the case and one sitting judge making a legal argument in favor of the case. It may be time to consider the impartiality of the parties in the present discussion.

  46. #46 Comrade PhysioProf
    August 21, 2009

    Do you think that is it possible to defame someone on the internet? Will there ever be a defamation case that you feel has merit? Or is the nature of the internet such that this sort of thing just does no apply.

    Of course. Of course. Absolutely not.

    As I already pointed out, making false factual assertions about someone on the Internet that damages their reputation would certainly be actionable under current defamation law. Calling someone a “skank”, a “misogynist”, a “racist”, a “dumbfuck”, or a “wackaloon” are not factual assertions, but expressions of opinion, and thus not actionable no matter where or how they are published. Saying that someone embezzled money from their employer or that someone is routinely observed drunk at 11AM are factual assertions, and would be actionable no matter where or how they are published.

    My understanding is that even if a published opinion is believed by many people, harms someone’s reputation, and results in huge economic losses, there is no basis for a defamation suit. For example, suppose I review a book by a hot young author who is thought of as the potential next PK Rowlings, and I say, “This book sucks, and the depiction of the characters is racist, misogynist, and makes puppies want to kill kittens, and leads me to believe that the author is himself a racist, misogynist, kitten hater.”

    I am a highly respected book critic, and this destroys out hot young author’s career, likely resulting in the loss of 100s of millions of dollars of future earnings. Sorry, no defamation suit is even close to succeeding.

    However, if my review says, “This book is fucking great, but this hot young new author beats up women”, that assertion could be the basis for a defamation suit.

    Hopefully, Joe the Lawyer will chime in on this.

  47. #47 Greg Laden
    August 21, 2009

    Makes sense. I also hope Joe chimes in.

    We laypeople should not be insisting that we understand legal distinctions better than legally trained/educated people. That would be like, oh, I don’t know what it would be like. Something bad. Like being cranky kitten haters or something.

    And you can quote me on that

  48. #48 Comrade PhysioProf
    August 21, 2009

    We laypeople should not be insisting that we understand legal distinctions better than legally trained/educated people.

    I see nothing wrong with all of us educating ourselves on legal issues of relevance, and then expressing our opinions. It ain’t motherfucking string theory or anything.

    And judges fuck shit up all the time. That’s why we have appellate courts.

  49. #49 Comrade PhysioProf
    August 21, 2009

    And judges fuck shit up all the time. That’s why we have appellate courts.

    Actually, I should have said, “That’s one of the reasons why we have appellate courts.”

  50. #50 Greg Laden
    August 21, 2009

    I agree. And I look forward to seeing how this case develops.

  51. #51 Comrade PhysioProf
    August 21, 2009

    Dude, something is really wrong here.

    Laden, you illiterate fucking moron!!!

    Ah, that’s better.

    Kidding aside, how about a little wager on the outcome of this lawsuit? And I’ll even handicap it in your favor.

    If this case settles for more than a nominal sum, let’s say $10,000, or if it even survives summary judgment, I’ll donate $100 to the charity of your choice. If not, you donate $100 to the charity of my choice.

    Deal?

  52. #52 Joe
    August 21, 2009

    Greg,

    I absolutely think there are and will continue to be cases where libel and slander occur on the internet and should be amenable to punishment. If I started writing that Greg Laden committed murder, or that you committed academic fraud, that would certainly be actionable. There’s nothing in the context of the internet that would make effectively tone that down.

    Putting the law aside for a moment, and keeping in mind that I only saw the quotes people put in the comments, I don’t really think that what amounts to glorified namecalling should be actionable. If one of your acquaintances is making vague insults behind your back in real life, you cut them off, you don’t sue them. Unless this blog had a ton of hits or was high on her google results etc.

    I should note that the opinion defense isn’t invincible – there is a side doctrine in libel law that even statements of opinion can be actionable to the extent that it implies facts exist to reasonably come to that opinion. So, for instance, you could probably call a girl with a bare midriff all sorts of names, but you couldn’t do so to the stereotypical nun.

    CPP – you’ve got it roughly right – the case wouldn’t be binding precedent outside of the particular jurisdiction of that court, but it would be persuasive precedent. I don’t know how important it is, not having read the opinion (if there is one).

  53. #53 Comrade PhysioProf
    August 21, 2009

    CPP – you’ve got it roughly right – the case wouldn’t be binding precedent outside of the particular jurisdiction of that court, but it would be persuasive precedent.

    Just to clarify, that would be within the State of NY, right? Since this is a matter of NY State tort law, it would not even be persuasive precedent in any other state, correct?

  55. #55 Burt
    August 21, 2009

    The problem with defamation, libel and slander is that people will believe anything they read and hear because well meaning legislators (I would say pandering but they by and large believe their intent is justified IMO) have deemed and codified it a tort to lie in print or public about persons or products.

    If it were the case that there were no proscriptions regarding the spoken and written word, people would be obliged to decide for themselves as to the veracity of assertions and not rely on the false security that a big brother is protecting their interests by punishing (or threatening to) those who would deceive.

    Whatever happened to the concept of freedom of expression? Fear is holding society’s reins. Now crimes are augmented in heinousness by “Hate” components and in many countries “Hate Speech” alone is punishable by lengthy incarceration. Holocaust denial has been punished in Europe of all places. In an effort to protect the populace from cradle to grave from themselves and bogeymen we have seriously gone astray.

  56. #56 Greg Laden
    August 21, 2009

    CPP: I think that is right, this “precident” would only be a guide, and even that in a very limited way, outside of NY.

    I’ll take a bet liketaht with yo usome other time, but not this one. I think you are right about the likely outcome.

  57. #57 MTran
    August 21, 2009

    CCP, in the state jurisdictions with which I am familiar, the ruling or written opinion of a trial court judge such as this is simply the “law of the case.” It is only binding on the parties to this specific case.

    Although it may be indicative of one judge’s attitude or approach to an issue, it does not bind any judge, even the one who issued the opinion, in future cases.

    As a practical matter, though, if the opinion is well reasoned and its author is well regarded by the bench, it may be persuasive authority to judges within that or other jurisdictions. And it may cause attorneys to go forum shopping if they have a similar case.

    Undoubtedly, there will be plenty of panel discussions about the issue at continuing legal education programs.

  58. #58 Jared
    August 24, 2009

    This just keeps getting better
    http://www.tgdaily.com/content/view/43735/98/

  59. #59 Greg Laden
    August 24, 2009

    “There were probably two hits on my Web site: One from me looking at it, and one from her looking at it. That was before it became a spectacle. I feel my right to privacy has been violated.

    Suddenly it all makes sense. This guy IS Physioprof!!!!