RECAP

As we previously reported, a New York trial court in Manhattan has issued an order (linkable full text -or- PDF full text) that requires Google to turn over the identity of a blogger that called Liskula Cohen a “skank” and called that Ms. Cohen went “lying” and “whoring” around New York.  Several other blogs have also carried the news about Liskula Cohen — some supportive, others less supportive, and some with mixed reactions.

WHAT REALLY HAPPENED

Liskula Cohen is a Canadian-born model who worked in New York City until recently.  She still considers herself to be part of the New York “scene” even though her modelling days are nearing their end.  One day, Ms. Cohen discovered a blog called “SkanksNYC” at http://skanksnyc.blogspot.com (it has since been removed).  The blog consisted only of posts about her–all of them alleging that she was a “skank” or “ho” and that she went “whoring” around NYC, that she is a “psychotic, lying . . . skank,” and making other insinuations about her sexual activities. The blog also contained photographs that had been cropped and captioned to make it appear that Ms. Cohen was about to engage in oral sex at a nightclub.  Ms. Cohen claims that all of these claims are false: she claims that she was not about to perform oral sex at a club, that she is truthful, and that she is not promiscuous.

The blog was written anonymously, so Ms. Cohen had no way to get in touch with the author.  Ms. Cohen did what comes naturally to any American: she called a lawyer.  Her lawyer told her that she had a cause of action for defamation against the blogger who claimed that she was “psychotic” and “lying” and made it appear that she was engaging in sexual relations in a nightclub.  The only problem is that Cohen did not know who to sue: the blog was written anonymously and Google refused to tell her who wrote it.  Google said its privacy policy allows it to turn over a blogger’s name only with a court order.

So, Cohen’s lawyers sued Google to try to force Google to turn over the identity of the blogger.  The anonymous blogger lawyered-up and the blogger’s lawyer showed up at the hearing.  Under New York law, there is an established test to determine if the name of an anonymous defendant (like the blogger) can be revealed.  The test depends on whether the plaintiff (Cohen–the model) has shown that she has a good chance of succeeding in a lawsuit against the anonymous defendant (the blogger).

Here, the judge issued an order (PDF) ruling in favor of Liskula Cohen and ordering that Google turn over the blogger’s name to Cohen so that Cohen can pursue a lawsuit against the blogger for defamation.  The ruling says that Cohen has a good chance of winning her lawsuit: the blog’s use of terms like “psychotic,” “lying,” and “skankiest in New York” could be understood by a reasonable reader as factual allegations about Cohen’s character and sexual promiscuity.  And the fact that the blog used the terms repeatedly to attack Cohen (and only Cohen) suggests that the blogger was malicious in his/her blogging, rather than just commenting on the New York social scene in general.

(see analysis inside...)

ANALYSIS

This is yet another court decision that has held that there is a limit to anonymous speech on the Internet.  The old days of the Wild West are coming to a close.  The normal laws that govern our society are starting to apply to the Internet, just as much as in the “real” offline world.  Bloggers are free to create blogs talking about any topic they want, but they will be held to the same standards as newspaper reporters.  Bloggers get all of the protections that the dead-tree press get, but they are also subject to the same limits on their speech.

UPDATE: The blogger’s name was publicly released.  It is not clear whether the blogger’s identity will ever be publicly revealed.  The judge could still require the lawyers (and Liskula Cohen) to keep the blogger’s name secret until there has been a full trial.  This kind of “protective order” is common in cases where there is an interest in anonymous speech.  Or Cohen could settle with the blogger out of court; now that Cohen has the blogger’s identity, she has a lot more leverage than before.  She may be able to extract a cash settlement, or just an apology.

If Cohen does actually sue the blogger, she’ll have to meet the New York test for defamation.  Under New York law (which has been upheld against First Amendment challenge, see below), the elements of a defamation lawsuit are:

1. a false statement;
2. published to a third party without privilege or authorization;
3. with fault amounting to at least negligence;
4. that caused special harm or defamation per se.

(from Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y.A.D. 1 Dept. 1999))

IMPACT ON OTHER CASES

This is just a trial court ruling in New York.  It does not have precedential value for other courts — in other words, other courts outside New York are not bound to follow it.  And within New York State, there can still be appeals that could change the outcome in this case. In theory, the parties in this case could appeal it all the way to the New York State Court of Appeals–the highest court in New York.  (New York’s courts are named counter-intuitively: the “Supreme Court” is the lowest court, and the “Court of Appeals” is the highest court).  If the Court of Appeals issued a ruling, that ruling would become binding law for all courts in New York.

In other words, the legal value of this ruling is nearly nil.

But, the Cohen case still sets a precedent in the court of public opinion.  This is a celebrity case that is being followed by a lot of people who otherwise would not be interested in the technicalities of Internet law.  It is sending a clear message to would-be spiteful bloggers who are quickly learning that their cloak of anonymity may not be as thick as they once though it was.  It is one more step along the road from Internet-as-Wild-West to Internet-as-suburb.

DOES COHEN ACTUALLY HAVE THE DEFENDANT’S NAME?

Cohen encountered one of the biggest problems in online reputation: she was smeared by an attacker hiding behind a cloak of anonymity.  She took the right first step by contacting Google (which manages the blogspot.com address where the blog was hosted).  But even Google might not know the name of the blogger.

After all, the blogger might have signed up with a false name, or used a fake email address to create the blog.  If so, then Google will know only the fake name and fake email address.  That won’t necessarily allow Cohen to identify a real-life human being to sue.

Instead, Cohen might have to file another lawsuit to try and identify the blogger.  Google almost certainly kept logs of the “IP address” of the person who created the blog.  An IP address is just a number, like “127.0.0.1″, that is used to route information around the Internet.  If Cohen knows what IP address was used to create the blog, she might be able to find the Internet Service Provider (“ISP”–like Time Warner Cable, or Comcast, or RoadRunner, or AOL) who manages that address.  And then–with another court order–the ISP might reveal what real-life person was using that IP address at the time.

All of this requires even more court orders and more activity from the lawyers.  The technology of the Internet makes it tough to get redress for online wrongs.

BUT WHAT ABOUT THE FIRST AMENDMENT?

Lots of people are wondering about the First Amendment implications of this case.  After all, the First Amendment says that “Congress shall make no law …  abridging the freedom of speech.” But the freedom of speech has never been held to be absolute: you can’t yell “fire” in a crowded theater, you can’t falsely advertise your products, and you can’t spread lies about other private individuals.  These ideas have always been part of the balancing act of free speech in the United States–and, indeed, in every Western democracy.

The Liskula Cohen case proves that same standards apply to bloggers as to everyone else.  In the United States, people who are defamed by a newspaper can sue the newspaper for libel.  And many people have done so: one of the most famous cases about the First Amendment started when an individual named L.B. Sullivan sued the New York Times for allegedly repeating lies about his conduct during the Civil Rights Movement.

The judge in the Cohen case correctly reasoned that rules that govern libel in dead-tree newspapers hold true for electronic publications: if you are defamed by a blog, then you can sue the blogger who wrote it.

The only question is whether Liskula Cohen is a so-called “public figure.”  Public figures are people who have chosen to lead their lives in the public eye.  In order to win a defamation lawsuit or a libel lawsuit, the Supreme Court has held that the First Amendment requires that a public figure plaintiff show that the defendant (like the blogger) acted with “actual malice.”  This requires showing that the defendant (blogger) was more than just careless or opinionated; the plaintiff must show that the blogger knowingly said false statements with an intent to harm the victim.  In other words, public figures have less protection against defamation–it is the price they pay for trying to live in the public eye.  Here, there is a good argument that Cohen chose her modeling career to be in the public eye, and that she thus has less protection than truly private individuals who have not sought the spotlight.  But, Cohen still might be able to meet the “actual malice” standard and win her lawsuit because the blog was directed only at her, contianed so many negative comments about her, and appeared to be just a spiteful attack on her.

Only time will tell what happens.  Keep an eye on this blog for more updates.

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