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Google Forced to Reveal Identity of Blogger
Published in the August 2009 issue of Litigation Notes - View Article
The Supreme Court of the State of New York forces Google Inc. to disclose the
identity of an anonymous blogger, to permit the commencement of a defamation
action. The blogger then sues Google.
The Supreme Court of the State of New York recently released a decision which raises interesting questions about privacy and the power of the internet.
In this case, the plaintiff sought an order forcing Google.com (and/or its subsidiary Blogger.com) to identify the anonymous blogger (“Blogger”) who had been posting allegedly defamatory postings about the plaintiff, Ms. Liskula Cohen, on websites under Google’s control. Google took no substantive position in the proceeding, but forwarded court documents to Blogger, who appeared anonymously through counsel and opposed the motion.
Blogger had posted statements about Ms. Cohen calling her a “skank” and “ho” and had made negative statements about her appearance, hygiene and sexual conduct.
Blogger posted most of these comments as captions to sexually suggestive photographs of the plaintiff, including photographs of the plaintiff with a man in positions suggesting sexual acts.
Ms. Cohen brought her motion to obtain the identity of Blogger so that she could sue Blogger in defamation. Blogger pleaded that the comments posted about the plaintiff were comment or hyperbole, “a loose form of 'trash talk' ubiquitous across the Internet . . . and should be treated no differently than 'jerk' or any other form of loose and vague insults that the Constitution protects.” Blogger further pleaded that blogs are a “protected forum for voicing gripes, levelling invective and ranting about anything at all.”
The Court first looked at whether the plaintiff had met the test for pre-action discovery in this case, namely that she had demonstrated a meritorious cause of action, and the information sought was material and necessary to that action. Blogger’s submission that the words complained of were comment, and thus protected, raised an issue as to whether the plaintiff had met the elements necessary to sustain a cause of action in defamation.
The Court concluded that Blogger’s statements contained assertions of fact, and thus were not protected. It found that the words “skank” and “ho” would be understood by a reasonable person to mean that the plaintiff was sexually promiscuous, and viewed in the context of being captions to various pictures on the Blog, were conveying facts.
In the context of the Blog as a whole, the thrust of the comments was that the plaintiff was sexually promiscuous – the words underscored the suggestive nature of the photographs. The court also found that, in the context of this specific Blog, the words complained of could not be compared to “jerk” or other loose or vague insults, not was the court willing to declare that Internet blogs were protected fora for conveying personal opinions, including ranting and invective:
“In that the internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens of , if not hundreds, of millions of people, the dangers of its misuse cannot be ignored. The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who chose to abuse the opportunities presented by this medium can be made to answer for such transgressions. Those who suffer damages as a result of tortuous or other actionable communications on the Internet should be able to to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First amendment rights.”
The Court ordered Google to disclose the identity of the Blogger. Since having been outed, the blogger has indicated an intention to sue Google for $15 million, for having failed to protect her privacy.
Cohen v. Google Inc. and Blogger.com
(New York Sup. Ct., 2009)