Wednesday, August 19, 2009

anonymity is not quite so anonymous anymore

From CTV:

"In August 2008, Cohen ran across a blog on Blogger.com, called "Skanks in NYC." The now defunct blog included five anonymous postings that read "I would have to say the first-place award for 'Skankiest in NYC' would have to go to Liskula Gentile Cohen.""

"On Tuesday, New York Supreme Court Judge Joan Madden agreed that Cohen was entitled to information about the blogger and ordered Google to turn it over.

In her ruling, Madden cited a Virginia court decision in a similar case that found that online bullies should be held accountable when they cause injury.

"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.

Google complied with the ruling Tuesday evening, submitting the creator's IP address and e-mail address -- all that is required to register for a blog on Blogger.com."


This ruling, I think, is a reasonable response to someone being libeled. Just because you can be anonymous doesn't mean you can attack people publicly with impunity. Opinions are protected, damaging someone is not. The judge's ruling itself states (and I think reasonably):

"The court also rejects the Anonymous Bloggers's argument that this court should find as a matter of law that Internet 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. To the contrary, as one court in Virginia has articulated: "In that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, of not hundreds of millions of people, the dangers of its misuse cannot be ignored.... Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights. In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. Cir. Ct.), rev'd on other grounds, 261 Va. 350 (Va. Sup. Ct. 2001)."
(ruling quote and styling ripped off from Ben Sheffner's blog Copyrights & Campaigns)

The story goes on to say:

"Cohen told ABC's "Good Morning America" Wednesday that she immediately recognized the blogger, describing her as an acquaintance who was a regular fixture at dinners and parties. Cohen has not revealed the blogger's name publicly."

The CTV story also tells us:

"The posts included pictures of 5-foot-10 blond Cohen and an unidentified man in sexually suggestive positions, with captions describing her as a "skanky ho'" and "a psychotic, lying, whoring skank.""

Cohen and her lawyer contended in court that the photos and statements might damage her career as a model.

All of this suggests to me (my opinion) that there was enough personal information to give Cohen an idea of who posted the pics - and that prompted the action, not so much concern that the photos or statements would really damage her career (again, my opinion - there is also plenty of suggestion that Ms. Cohen feels otherwise, though).

John Timmer at Ars Technica makes the following comment:

"Given the long legal odds, it's difficult not to consider why Cohen has chosen to file this case in the first place, especially since it is drawing attention to a site nobody is likely to have visited and probably would have continued to languish in silence after its last post in August. My suspicion is that it has something to do with the personal nature of the photographs hosted there; Cohen may simply be attempting to get something out of the discovery process that might clue her in as to who's gotten access to these images."

Copyrights & Campaigns (a blog: Ben Sheffner is a copyright/First Amendment/media/entertainment attorney and former journalist) tells us:

"The "Skanks in NYC" bloggers fought hard to remain anonymous, hiring a lawyer to oppose Cohen's motion for an "order for pre-action disclosure" under CPLR § 3102(c). (Google did not oppose the motion.) The bloggers argued that the comments about Cohen were "non-actionable opinion and/or hyperbole" and "have become a popular form of 'trash talk' ubiquitous across the Internet and network television and should be treated no differently than 'jerk' or any other form of loose and vague insults that the Constitution protects." And they asserted that the forum of a blog "negates any impression that a verifiable factual assertion was intended" since "blogs have evolved as a modern-day soapbox for one's personal opinions" by "providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken, a protected forum for venting gripes, leveling invective, and ranting about anything at all.""

Cohen herself provides insight to her motivations (from the New York Post):

"Cohen is no stranger to pain.

In January 2007, she was at the club Ultra on West 26th Street when she got into an argument with a man named Samir Dervisevic, who'd tried helping himself to a bottle of vodka on Cohen's table.

He ended the spat by stabbing her in the face with a broken glass, disfiguring her.

"I went to the bathroom and I saw my whole career go down the drain. I looked in the mirror and saw a hole in my face the size of a quarter. I've been a model my whole life, and I've never had another job," she told The Post last year.

Her career skidded to a halt while she had to undergo plastic surgery to repair the damage, and her filing says she doesn't need any more agony.

"Defamatory statements describing me as a 'skank' and a 'ho' affect my reputation and desirability for endorsing products," and are "hurtful, potentially damaging to my reputation, and, significantly, they are flatly untrue," her affidavit says."


The Citizen Media Law Project has an interesting review of the legal elements of the defamation case.

I wish Ms. Cohen all the best in her career, and will be watching to see the success or not of the actual defamation case.




EDITORIAL COMMENT: And now for a little tech guy snobbery

As for the blogger who put up the original blog... all I can say is "What kind of an idiot are you?"

You defame someone without knowing how to truly make yourself anonymous on the internet?

Moron.

You deserve all you get.

- J. Burton

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