Anonymous defamation

The New York Daily News reports on a lawsuit against Google, as host of Blogger.com:

A Vogue cover girl is suing Google in an attempt to unmask the blogger who trashed her as a "skank" and an "old hag."

Liskula Cohen, a blond beauty who has modeled for Giorgio Armani and Versace, made headlines last year when a doorman at a Manhattan hot spot was jailed after smashing her in the face with a vodka bottle.

Now she wants to force Google to reveal who slammed her online as the "#1 skanky superstar" on a blog hosted by the search engine's subsidiary.

"It's petty, it's stupid and it's pathetic," Cohen said of the sniping. "And when I do find out who did this, at least I'll know who my enemies are."

The defamation suit, filed in Manhattan Supreme Court, seeks a court order compelling Google and its Blogger.com service to identify whoever led the vicious Internet assault against Cohen.

Her lawyer Steven Wagner conceded it's not easy to identify bloggers who lob insults anonymously, as New York courts have generally declined to force them into the light.

"We think we have a case," he said. "This is libelous, it's defamatory and you shouldn't just get away with this."

Read more here.  Ars Technica summarises in lay terms the legal hurdles presented by this case:

Since the blogger is anonymous, however, there is an extra legal hurdle between Cohen and whatever financial revenge she seeks.

That hurdle would be Google and its army of lawyers. Essentially, Cohen has to demonstrate defamation twice: once to show that she has a sufficient case that the identity of the blogger should be unmasked. At that point, the case could proceed against the actual author of the blog, at which point the defamation would have to be demonstrated all over again. None of this will be easy, as US courts generally set a high standard for defamation of public figures, and Cohen has made a name for herself in ways that go beyond modeling by getting hit in the face with a vodka bottle at a Manhattan club.

As a result, the case appears to be an uphill battle, which means both that nothing is likely to come of it and that, should something unexpected happen, the legal context makes it likely that the decision will further muddy the waters when it comes to determining the legal status of bloggers.

Read more here. 

It is interesting to consider what the legal position would be if this had occurred in Australia, as I think it would be easier for Cohen to obtain relief.  That is because Cohen would be able sue Google for defamation.  In the US, Google has immunity courtesy of s 230 of the Communications Decency Act, however no such immunity exists in Australia and Google would be unlikely to be able rely on the defence of innocent dissemination.  However, even if Cohen did not sue Google, she would be able to use the threat of a lawsuit as leverage to require Google to disclose the identity of the anonymous blogger.  And ultimately that is where these sorts of lawsuits should be fought - between the person alleging defamation and the party who posted it to the internet - without involving the intermediaries or platforms who should not be liable for what others post to that intermediary or platform.

Comments

[CyBerLaw]

LiveJournal’s pro-libel policy is causing advertisers to look elsewhere.

LiveJournal’s terms of service prohibit the posting of libelous or defamatory material, but when LiveJournal receives a complaint about such material, all they do is alert their subscriber to the possibility of legal action.

Unlike WordPress, a competing blogging platform, LiveJournal does not remove defamatory content.

Several LiveJournal subscribers have posted a great amount of defamatory material about child therapists, making allegations such as:

* Involvement in Internet child trafficking

* Forcing parents to watch torture videos

* Having histories of violent crimes

Several advertisers, when alerted not only to the content being published on LiveJournal but also to LiveJournal’s refusal to do anything about it, have suspended their advertising campaigns with LiveJournal.

Others are considering doing the same.

Neither Anjelika Petrochenko, LiveJournal’s new North American manager, nor Mark Ferrell, LiveJournal’s abuse manager, could not be reached for comment. Petrochenko replaced Tupshin Harper, who managed LiveJournal for several years, and who appears to have been a key architect of the “hands off libelous content” policy that is now impacting LiveJournal’s bottom line.