This morning, I have been reading about an interesting legal case involving a supposedly anonymous blogger in New York whose identity was revealed by the blog's host, Google.
The blogger had "posted rants" about a model at a blog titled "Skanks in NYC." The model, Liskula Cohen, didn't want the blogger's comments to remain on the internet for the rest of her life so she sued to get information about the blogger's identity, and a judge ordered Google to comply.
Google complied, and now the blogger says she will file a $15 million lawsuit against Google for not protecting her identity.
"The judge rejected [her] argument that blogs on the Internet 'serve as a modern–day forum for conveying personal opinions' and should not be regarded as fact," reports Stephen Samaniego for CNN.com.
Samaniego says legal experts believe the blogger is not likely to win the suit.
It reminds me of an online discussion I had with another blogger a few months ago.
This blogger had written about a murder case in which a child went missing and her body was later discovered in a suitcase. The church the child attended — and the home of the church's pastor — were investigated by the police. No one in authority had accused the pastor of anything, but his grandchild was about the same age as the murdered child and it turned out they had been playmates. The victim lived near the church and the pastor's home. That made them locations of interest.
When I was a general assignment reporter, one of my beats was the police beat. Based on my experience, it sounded — to me — as if the police in this case were leaving no stone unturned. I think most of us would agree that is the kind of diligence we would want from the police if someone we loved — particularly a child — met with foul play.
But the blogger made a remark in her report that was along the lines of "It's hard to imagine a pastor being involved in something like this, but ..."
That struck me as being sort of a non–accusation accusation, and I made the comment that, if the police investigation revealed a more likely suspect, the pastor might feel inclined to sue anyone who had implied that he might have been involved.
The blogger got defensive and responded that she had been stating her opinion. "That's what we do here," she said.
I replied that I understood what she was saying, but I also majored in journalism in college and, as a result, I know a little about communications law. I'm not a lawyer, but I know enough about the law to know a civil proceeding and a criminal proceeding are two different things.
In both instances, the burden of proof falls to the one bringing the charges. But the proof need not be as compelling in a civil case as it needs to be in a criminal case.
Remember the O.J. Simpson murder case? In the criminal case, Simpson was acquitted of murder charges because, in the jury's eyes, the prosecution did not prove its case beyond a reasonable doubt. When the families of Nicole Brown and Ronald Goldman brought Simpson into court for the civil case, the prosecution did not have to meet that standard. It also did not need a unanimous jury verdict. There were a few dissenting votes, but there were enough votes supporting the prosecution that Simpson lost and was ordered to pay millions of dollars to the plaintiffs.
Communications law has been evolving for hundreds of years. It has adapted when new forms of communication have emerged, but the principles have remained constant.
Many bloggers believe — erroneously — that anonymity is guaranteed on the internet and that their statements can be defended as opinion.
Anonymity is not guaranteed. If a blogger writes something that is considered pertinent to a legal investigation, the provider of the blog space is likely to side with authorities, as Google did, and produce whatever information it can. Bloggers who sign up with Google only have to give an e–mail address, but if law enforcement is seeking information, a blog space provider may well do as Google did and turn over that address to the authorities and let them track down the blogger.
"Google does comply with valid legal processes, such as court orders and subpoenas, and these same processes apply to all law–abiding companies. At the same time, we have a legal team whose job is to scrutinize these requests and make sure they meet not only the letter but the spirit of the law."
Google statement
As for bloggers who believe that opinion is a defense, I would remind you that the judge in New York rejected that argument.
Laws vary from state to state, jurisdiction to jurisdiction. And communications law is still emerging in the virtual world.
But, until these laws have fully emerged, the best advice I can give to bloggers would be:
- If those conducting an investigation have charged someone with a crime, that is when it is appropriate to begin forming an opinion. Until such a charge has been filed, though, any such "opinions" can be viewed as speculation.
That could leave you vulnerable to a lawsuit. And even defending yourself in a lawsuit can be very expensive. It can be even more costly if you lose. How costly? It depends on the jury. - Just because you have an opinion about someone or something does not mean you must express it.
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Agreed! I’ve noticed a trend recently (mostly in reality TV contestants, but that’s neither here nor there), of people insulting and belittling everyone around them, then proclaiming, “I’m just telling it like it is!”, as if that absolves them from any responsibility for what they just said.
While I value Freedom of Speech over almost any of my other rights, I think we can all use a reminder that it’s not the same thing as freedom-from-the-consequences-of-our-speech… yes, even on the internet!
"the mistake is that people don't realize that everything they post on the internet will be regarded under that blanket" should read "the mistake is that people ASSUME that everything they post on the internet will be regarded under that blanket. "
I need to proofread.
When I was in college, my journalism professors used to talk a lot about "fair comment." Essentially, what that meant was that it was OK to state an opinion that was based on something relevant -- i.e., you could say you didn't think a certain person was a good choice for a political office because this happened or that happened in an office he managed, but you couldn't say he wasn't a good choice because his marriage broke up.
They did what any company would do given a court order directing it to take a certain course of action. They complied. That is what we do in a nation of laws.
Rosemary Port needs to grow the hell up, shut the hell up, and hope that the model doesn't sue her for defamation. She wrote something that was derogatory about a non-public figure.
As for suing Google, give me a break. A company complies with a court order that it fought against, and you said they're not doing enough to keep your identity private? They coughed up far more money than they made on your blog to try.
I won't call Port a skank, because that would involve me having to know about her sexual history and I'm quite honestly not interested in that. Although it would be funny if a bunch of her ex-boyfriends came along and said she was easy, wouldn't it?
But I will call her clueless. Google didn't do enough to protect your privacy? Uh, hello, they fought the court order!
imho, the word "commentary" is just not used enough.
I'm trying to get this across to my four teenage children: just because a thought comes into your head doesn't mean it has to come out of your mouth! They don't get it either.
See, you totally can say he's not a good a choice because his marriage broke up. It's just journalistically irresponsible, but most bloggers aren't journalists. And even though it's irresponsible, if someone wanted to bring a civil suit against said journalist, they wouldn't have a case unless the statement that his marriage broke up is untrue.
But my impression is that the law does not differentiate between trained journalists and so-called "citizen journalists."
If you write something that is intended for public consumption, you have to deal with the laws the way they are written and enforced, not the way you wish they were written or enforced.
However, with actions, there are consequences. Call someone who is not a public figure a skank and identify her, and you shouldn't be surprised if her lawyers come calling.
I can say something like Sarah Palin is a dumb twit who couldn't find her ass with both hands and a flashlight, and she would have very little recourse. Why? Because she is a public figure.
On the other hand, if I post on a blog that same rant with my next door neighbor's name instead of Palin's name in there, and put a couple of pictures of her up, then I can get in trouble. Why? Because my neighbor isn't a public figure.
It is true that there is considerable latitude when it comes to comments about public figures. But the courts have been imposing more restrictions on that in recent years.
Remember, the first amendment applies to the government. It prevents the government from preventing you from saying what you want, with certain exceptions.
On the other hand, another private citizen is free to sue you for a comment you make.
And Open Salon, if they want to, can kill any post they want for any reason or no reason.
Why? Because a private citizen and Open Salon are not restricted by the first amendment.
Whether you're a trained journalist or not, if someone feels he/she has been libeled, they're likely to bring a lawsuit. In my experience, courts don't differentiate between journalists and garden variety bloggers. Those who write for public consumption need to keep that in mind.
Truth, it seems to me, is the best defense. If an opinion is founded on truth, it has a better chance of holding up.
You're not free to yell "Fire!" in a crowded theater -- unless, of course, there really IS a fire.
Huh? The first amendment applies everywhere, even Open Salon. We have a whole slew of other laws to try to elucidate what the first amendment means. From previous rulings, the law has decided that opinion is protected speech, as is satire. The problem with Port calling Cohen a skank is not that she called another private citizen a name. It's that her blog potentially constituted slander and defamation of character, which is illegal and not protected by the first amendment.
This may seem like a technical point, but slander refers to spoken defamation. Libel is the term for written defamation.
That may be one of the points that needs to be spelled out in future adjustments to communications law. Defamatory comments may well be in videos and not in text, which, I suppose, would fall under the heading of slander.
But, in this case, my understanding is that we have been talking about written comments. Legally, that would be considered libel.
I also always feel the need to clear things up when people think that libel/slander and defamation merely means publicly calling someone else a name. It's only libel if it's not true. Cohen really might be a skank.
"It's only libel if it's not true."
An intriguing point. I wonder how well it would hold up in court. Malice is also a factor that is taken into consideration.
You, for example, are not a public figure. If someone writes something about you that is true -- or perhaps was true at one time but but may no longer be true -- that you don't want anyone to know, is your reputation damaged because someone wrote it?
I guess that would be what we called in school "public disclosure of private facts," which seems to be treated almost the same as libel in most courts. A big exception is that truth is not a defense for invasion of privacy.
Did you ever see the movie "Absence of Malice?" In the movie, a woman was able to provide an alibi for a suspect because he was with her. But the reason he was with her was because she was having an abortion. She was Catholic, and the people in her world would not accept it.
The reporter wrote about the abortion, even though the source begged her not to, because she believed it gave credibility to the alibi. But when the woman saw the article, she killed herself.
Each case is different. But privacy and malice and truth are balls that courts must juggle constantly in libel and slander suits.
I'm no lawyer either, and know that I don't know all about this. But we do have fairly strong protection for opinion in this country, and yes, factors like malice play into whether someone can successfully sue for libel or slander. My own understanding is that such cases have always been quite difficult to prove, which is one reason they aren't brought to court very often. As well as malice, I believe there's also an element of harm that has to be proven.
If it were really this easy to be sued for this stuff, people like Maureen Dowd, who says nasty things about people all the time in her NYT column, including without a link to anything factual, would be in court 24/7.
It is true I'm not a lawyer. And perhaps I'm being unduly alarmist. I just think it is something bloggers should consider, especially since laws are so fuzzy on this point right now.
My thinking, at least in Maureen Dowd's case, is that she is protected by the protections for satire and comment about public figures.
But she certainly seems to tread a fine line at times.
It does not apply to Open Salon, and it does not apply to Google.
The government did not step in and say that Port couldn't write what she wanted to about Cohen. Therefore, it is not a first amendment issue. Period.
If, before this lawsuit, Google said we don't want that crap on our server and deleted it, Port would have had no recourse. Google absolutely has the right to control what it allows on its sites. If they want to get rid of everything that's negative about their company and everything that's positive about Yahoo! and Microsoft, that is their right.
Your point about Google is really irrelevant to anything I was talking about. All I said was that opinion is protected speech, libel and slander is not (libel and slander being falsehoods that are damaging to the individual's reputation). The entire reason Cohen wanted the identity of the blogger was to give her the possibility to pursue charges of libel and defamation of character, since Port made allegations of her promiscuity, among other things. She also called her ugly, but there can't be any charges brought against her for that, since it's an opinion.
And with that, I'm done. I've already said way more than I needed, or intended to say. I took exception to the part about opinions, but other than that, nice post, David.
When it comes to X suing Y, things are all different, and more wide open. When someone says "X can't sue Y for Z" what they really mean is, X probably won't win if they try. If X has lots of anger and lots of money, they can try to sue Y for A, B and C, and can hassle Y with semi-plausible lawsuits until one catches a jury. And you only need 6 out of 12 to agree for that to happen; it's civil not criminal.
So the way to avoid a lawsuit is to avoid pissing off your target very much, either with an obscure post, a not-very-damaging post, or by hiding behind laws you think will protect your post, or whatever. How obscure, how damaging? Usually, less than the cost of them suing you. Your guess. There are laws and previous decisions, but they all have obscure exceptions, and every case is different and every judge is different and every jury is different.
Here's the URL:
http://open.salon.com/blog/trudge164/2009/08/24/can_calling_megan_fox_an_idiot_get_you_sued
It also seems to me that there are two issues here. One is about name-calling. The other is about anonymity. If google has something in their rules about revealing anonymity under certain circumstances then they're in the clear. If not ... well ... that chickie might have a case.
The first woman, called the names, probably not much gonna happen there. It sounds like name-calling. Not really sue-worthy unless it's certain circumstances. Does the first woman make a living that requires her not to be perceived as having loose morals? That'd be the ticket. Also, can the blogger claim it's humor in some way, another important point.
Anyway, revealing anonymity is troubling. It will change the blogosphere when we can't be anonymous if we chose.
every post has to have an originating IP number
even remailers get broken when seized by police with court orders
if you use your own name you may be more credible too
(as on The Well)
Just because you have an opinion about someone or something does not mean you must express it.
You ask for the criteria to unmask an anonymous blogger. I see no simple answer to that. Several people have chipped in with answers for that. The answer seems to depend on the circumstances.
Privacy and defamation are relevant issues to us all, so in the next couple of days I will blog definitively about the law in those areas as kind of a guide so we all know what we are dealing with when we post something.
But quickly: She will lose her lawsuit against Gooogle, as Google was obeying a court order. Opinion is generally not subject to a defamation action, but there is a big gray area as to whether some statements constitute opinions or statements of fact, so be careful. Truth is a complete defense to a defamation lawsuit. Falssely impugning someone's sexual character or saying that they have some "loathsome disease" is libel per se. There is a HUGE difference between what you can get away with saying about a public figure and a private person. Sometimes, a plaintiff must prove that they have been economically damaged by the defamatory statement; other times they do not -- it depends both on the comment and the jurisdiction. Deciding jurisdiction about a statement on the internet can be dicey and hard to predict ahead of time. The level of proof needed is a mere preponderance of the evidence: 51% more likely than not. In some states you need a unanimous jury, others require less than that. Here in California, a plaintiff needs 9 out of 12.
More later. Now I have to go see a client who is fighting for his life.
There is no such thing as true anonymity on the web, as anyone who is tech-savvy can attest to. Even if you go through an anonymous server in a foreign country, packets still need an address to get to you. There is always a trail.
That said, I would imagine that every ISP that hosts blogs has some clause in their TOS that states what country/state has legal jursidiction over lawsuits filed. I would imagine that would apply to the blogger in question here, but not being a lawyer that's merely supposition on my part. Dana could better address that.
Seems it would be wise to compose off-line, proofread often, and always second-guess your phrasing before hitting that "publish" button.
Visit http://www.archive.org/web/web.php (otherwise known as the Internet Wayback Machine, Mr. Peabody) if you don't know what I'm talking about. They can sometimes have cached copies of sites that go back years.
Over a period of twenty-five years (my avatar is a VERY old photo...) I have had seventeen suits initiated against me for defamation, only three reached court and I won in each case. The other actions were withdrawn before the hearing date once I indicated that I would be happy to meet in a courtroom. Those that proceeded went ahead against the advice of their own legal counsel. In each instance it was for published comment about political or hopeful political figures based on my opinion and nothing else. I made it clear in each case that it was only my opinion. There was also an editorial disclaimer prominent in each instance.
I have potential (threatened) law suit pending now - but I am not concerned about it.
What that woman did was make claims, not express personal opinions. She deserves whatever she gets. If she really wanted to remain anonymous she should have used off-shore servers. Plenty in Russia and Italy where a US court order will have no effect.