Rosemary Port’s privacy lawsuit against Google is a guaranteed loser

As we have previously mentioned, “skanksnyc” blogger and FIT student Rosemary Port has sued Google for $15 million, claiming that Google violated her privacy by revealing her identity.  The whole conflict got started when model Liskula Cohen noticed an anonymous blog on Google’s Blogspot.com site that made allegations that Cohen was a “psychotic” “lying” “skank” who performed oral sex in nightclubs.  Cohen sued Google to reveal the identity of the anonymous blogger, so that she could sue the blogger for defamation.  Google was forced to reveal Port’s email address to model Liskula Cohen after the Supreme Court of Manhattan issued an order requiring it to do so.

As legions of other chattering experts have said, Rosemary Port’s lawsuit is a guaranteed loser.

IN SHORT:
The court forced Google to reveal Rosemary Port’s name.  It can’t be liable for what a court ordered it to do. And Google definitely never agreed to indemnify Rosemary Port for the consequences of what a court ordered it to do.  Anyway, Google’s Terms of Service make clear that Google will respond to court orders.

IN DEPTH:
Privacy is incredibly important–and that includes both the privacy of bloggers and the privacy of private individuals who think they have been defamed by a blog.  This balance has always been a part of American free speech law, and it is an important balance to consider when thinking about cases like this one that balance the rights of a blogger to speak (Port) and the rights of a private individual to live her live without being slandered (Cohen).

Nobody forced Rosemary Port to use the Blogspot.com service offered by Google.  She chose among blog providers, and picked Google’s.  By signing up to use Google’s blog service, Rosemary Port decided to accept the balance of privacy that Google provides.  Google is a private company and it could set any privacy policy it wants: As long as Google made its policy clear up front, Google could set a policy of never revealing identities, or it could set a policy of buying full-page advertisements in the New York Times with the name of every Blogspot user.

As it happens, the Terms of Service for using Google’s Blogger website sets a clear policy for when Google will reveal the identity of a Blogger.com / Blogspot.com user:

“… You agree that Google may access or disclose your personal information, including the content of your communications, if Google is required to do so in order to comply with any valid legal process or governmental request (such as a search warrant, subpoena, statute, or court order)…”

And that’s exactly what Google did.  Google followed its own privacy policy to the letter.  Google hired big-shot lawyers to try to quash (prevent the execution of) Liskula Cohen’s subpoena (demand for information), but the court went ahead and ordered Google to turn over the information.  Google probably went beyond what most normal people would expect for a small blog — it probably cost Google at least $10,000 worth of lawyers’ time to defend the blog, based on the written briefing and oral arugment that was conducted.  That’s something like $20 per word!

Rosemary Port might have been able to win if Google did not try to defend her name, or if Google ignored its own privacy policy and turned over her name before the court ordered it to.  But by all accounts, Google did exactly the right thing and followed its own privacy policy to the letter.

It should not take a court very long to dispose of the case.

WHAT THIS MEANS

Think carefully about the information you turn over when you speak online.  If you give your information (such as your name and email address) to a private company, that company could reveal it to the government or to another person.  If you intend to say controversial things, you may want to think carefully about whether it is wise to use a free commercial blog service–after all, the blog site might not turn over your ID without a court order, but it might not put up a very big fight either.

If you have been attacked online, think carefully about whether it makes sense to sue.  More people heard the word “skank” near “Liskula Cohen” because of the lawsuit than ever would have if Cohen had worked out her problem in a different way.  Sometimes, it makes sense to call for professional reputation management rather than just lawyers.  A strategy to carefully control the offensive content might have solved Cohen’s complaint with much less fuss.