Can You Be Sued for Unmasking an Anonymous Blogger?
posted by Daniel Solove
A model named Liskula Cohen was being attacked on a blog called Skanks in NYC. The author of the Skanks blog was anonymous. Kashmir Hill reports:
Cohen started pursuing the defamation suit against the anonymous ‘Skanks’ blogger in January after discovering the site, on which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her, taken from various websites. Since Cohen needed the identity of the blogger in order to file the lawsuit against her, a judge in Manhattan granted Cohen’s request to force Google to reveal the e-mail address and IP address of the alleged defamer.
Cohen has since dropped her $3 million lawsuit. The unmasked blogger — Rosemary Port — plans to sue Google for $15 million for breaching its fiduciary duty to defend her anonymity.
Over at CyberSLAPP, a website maintained by EFF (disclosure: I’m on EFF’s advisory board), ACLU, CDT, EPIC, and Public Citizen, they have posted documents from the case, including the court’s order to Google to unmask the author of Skanks.
CyberSLAPP seeks to combat frivolous lawsuits to reveal another’s identity:
CyberSLAPP cases typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a frivolous lawsuit just so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them.
The Skanks in NYC raises a lot of interesting issues. I’ll tackle a few in this post.
1.Was Cohen’s lawsuit frivolous? Cohen might have a decent defamation lawsuit, but she subsequently dropped it when she found out Cohen’s identity. This behavior indicates she was using the lawsuit only to unmask the blogger. I agree with CyberSLAPP that such a practice should be restricted.
2. Did the court properly reveal Port’s identity? I believe that the court used too low a standard in revealing the blogger’s identity. The court ordered Google to reveal the anonymous blogger because “a strong showing that a cause of action exists.” This standard appears to be little more than requiring the plaintiff to survive a motion to dismiss. While I’m very sympathetic to people who have been injured through online defamation and invasions of privacy, I’m also wary of courts being too quick to reveal the identities of bloggers. I believe that in order to reveal a blogger’s identity, plaintiffs must meet the summary judgment standard, as set forth in Doe v. Cahill, 884 A.2d 451 (Del. 2005) (I blogged about it here).
3. Does Port have a cause of action against Google? I don’t think she’s got much of a case. Google was complying with a court order. However, over at PogoWasRight, Dissent raises the interesting point that Google had a rather anemic defense of Port’s anonymity. Could Google be liable for not doing enough to defend Port? Maybe, as EFF attorney Matt Zimmerman notes in Dissent’s post, if Google didn’t notify the anonymous blogger and give her a chance to respond. Beyond that, though, I’m not sure that there’s much of a case against Google, but there may be facts I’m not aware of that would change my opinion.
4. Does Port have a cause of action against Cohen for using the legal process to reveal her identity? A better defendant than Google might be Cohen. Port may be able to sue Cohen, perhaps for abuse of the legal process, if Port can prove that Cohen initiated a frivolous action solely to unmask her. The revealing of an anonymous blogger’s identity is a privacy invasion in my opinion, because it links speakers to things they said that they don’t want to be connected with their true identity. The use of legal process and obtaining of a court order might provide shelter to Cohen unless Port could prove it was just a ruse to reveal her identity.
5. How should courts protect anonymous bloggers? In addition to using the summary judgment standard, courts should require a plaintiff who finds out the identity of an anonymous blogger to keep it confidential until it absolutely must be revealed to the public. Courts should enforce this via a protective order. A lawsuit can proceed quite far before it is necessary to reveal a litigant’s name to the general public.
Moreover, plaintiffs should be prohibited (to the extent possible) from using unmasking the identity of an anonymous blogger as a bargaining chip in settlement negotiations.
However, in the end, if a blogger has anonymously invaded a person’s privacy or defamed that person, then the blogger should be held responsible. I fully support a person’s ability to sue for privacy violations or defamation. Anonymity shouldn’t be a shield for hurting other people and committing torts (or crimes). The difficulty is in robustly protecting people’s First Amendment right to speak anonymously and preventing harm to people from invasions of privacy and defamation.
For more on the Skanks case, see this other post by Kashmir Hill discussing the rights of the Skanks blogger.
For more on the issue of blogging and anonymity, see also this story on CNN about the coming-out stories of anonymous bloggers. I have a quote in it, and the reporter kindly linked to The Future of Reputation.
August 25, 2009 at 7:04 am
Posted in: Anonymity, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0
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Responses (24)
Orin Kerr - August 25, 2009 at 9:21 am
Dan,
What’s the possible theory for recovery against Google? I can’t fathom a cause of action against a third party like Google for not raising a sufficiently robust defense of a blogger’s rights, especially when the blogger had her own lawyer intervene and file a brief in her defense.
A.J. Sutter - August 25, 2009 at 9:26 am
Do you have facts on which to base your conclusion that Cohen’s lawsuit was frivolous ab initio because she dropped it? Might she have simply realized it would be too expensive or disruptive to pursue?
“[I]n the end, if a blogger has anonymously invaded a person’s privacy or defamed that person, then the blogger should be held responsible” — yet it seems at least to this reader that the general drift of your post is against Cohen. Given the tremendous potential for abuse of the type that Port allegedly inflicted on Cohen, and that many people are in fact abused this way online, my gut feeling is that you are being too solicitous of the right to anonymous abusive speech — to the point that you would encourage Port to sue the victim of her own abuse. In plain English, I think that’s a perverse result.
In general, I’m troubled by the invocation of the First Amendment to accelerate the loss of civility in our society, especially at the hands of the anonymous. Some might applaud the fact that your advice is so content-blind — but is this really the sort of speech the First Amendment was intended to protect? If Port were your client, what you might advise her would at least be kept between you and her (even assuming you didn’t exercise your judgment to decline representing her against at least some potential defendants). But given that your advice in the blog is both gratuitous and public, I’d think you might want to be more cautious about publicly advocating a Port v. Cohen lawsuit — especially since, as you point out, your views now carry so much weight.
Daniel Solove - August 25, 2009 at 10:46 am
Orin — I don’t think she has much of a case. The only thing I can think of is if Google made certain promises in its terms of service about defending against subpoenas. Or if Google promised to notify the blogger but didn’t do so.
AJ — I’m not offering legal advice or advocating Port v. Cohen. I’m merely opining that Cohen might be able to sue Port for litigating in bad faith. It is one thing if Cohen really wanted to sue Port, but if Cohen merely used the lawsuit as a ruse to obtain Port’s identity, then that’s a misuse of the judicial process. Identifying anonymous bloggers requires a delicate balance under the First Amendment, and the reason why they get identified is because of the need for plaintiffs to pursue legal redress. If a plaintiff is pretending to pursue legal redress in order to tip the balance in her favor to unmask an anonymous blogger, then this strikes me as problematic.
Cohen may very well have been justified in suing Port for what she said. I fully support the lawsuit to obtain redress for defamation or invasion of privacy. But I’ve long argued that people shouldn’t take matters into their own hands. When an anonymous blogger defames a person or invades her privacy, I don’t believe it is appropriate to unmask the blogger, shame the blogger, or invade the blogger’s privacy in retaliation. When plaintiffs use a lawsuit merely to unmask an anonymous blogger, this suggests to me that they are really seeking to retaliate by exposing the blogger to the world. It is this kind of behavior that I think the law should protect against. The law must thus protect both the victims and the alleged defamers or privacy invaders.
Chris Murphy - August 25, 2009 at 2:09 pm
There is no reason to believe that Cohen was litigating in bad faith. Based on news reports I understand that the defamation suit was dismissed because Cohen knew the defendant and also knew that she was basically judgment-proof. This in no way supports the claim that the lawsuit was frivolous or that the suit was filed simply to uncover the identity of an anonymous blogger.
Outed ‘Skanks’ Blogger Rosemary Port to Sue Google | Top Legal News - August 25, 2009 at 2:40 pm
[...] Opinions, privacy expert and George Washington University law professor Daniel Solove delves into some of the legal issues running through this suit. Beyond wondering whether the court order unmasking Port was too easily granted, Solove wonders [...]
Heather - August 25, 2009 at 2:43 pm
I don’t think that the Plaintiff’s willingness to take the case to trial should be the standard (although Cohen’s immediate abandonment of the suit should be evidence of bad faith). One can imagine a corporate Plaintiff, irked by those “pesky” bloggers criticizing its product or service, putting the screws to some poor complaining schmuck whose identity it can discover – knowing that person cannot pay big bucks but attempting to bankrupt him or her by the litigation process.
Secondly, since when did calling someone names like “ho” or “skank” become defamation? Is there still some form of delineation between broad hyperbole like that and specific, factual accusations (“she performs sex acts for money” perhaps, or “she has herpes”)?
Daniel Solove - August 25, 2009 at 3:12 pm
Chris — Thanks for the additional facts. That explanation would definitely support Cohen and suggest a good faith reason for bringing then dropping the suit.
There are instances, however, of plaintiffs bringing a lawsuit merely as a ruse to unmask anonymous bloggers. In The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, I wrote about one case where an employer used the technique to find out the identity of an employee who was making some very nasty comments. When the company found out the employee’s identity, it dropped the suit and fired him. (pp. 148-149)
There must be some limit on the practice of bringing suits merely to unmask bloggers. That said, whether Cohen falls into this category depends upon the facts, and the facts you point out definitely help support the argument she might not fall into this category.
Orin Kerr - August 25, 2009 at 6:19 pm
Dan writes: “I don’t think she has much of a case. The only thing I can think of is if Google made certain promises in its terms of service about defending against subpoenas. Or if Google promised to notify the blogger but didn’t do so.”
As you might guess, Google’s TOS say no such thing — indeed, it’s hard to imagine otherwise. To the contrarym Google’s privacy policy says that they will disclose if they “have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request.” All they need is good faith, which they surely have here.
http://www.google.com/privacypolicy.html
Dave Hoffman - August 25, 2009 at 7:09 pm
It disturbs me that I respect Orin so much that I spent about five minutes looking in various dictionaries to see if “contrarym” was some fancy new word. Perhaps related to antonym?
And then I saw that “m” was suspiciously close to the “,”. Nuts to you, Kerr, for making me just that much less productive tonight.
Orin Kerr - August 25, 2009 at 7:56 pm
Sorry, Dave! Although I do like to think of myself as a contrarym.
James Grimmelmann - August 25, 2009 at 8:14 pm
In some ways, I’m *less* worried about personal lawsuits filed purely to unmask anonymous bloggers than I am about lawsuits carried all the way through trial. It seems like a better result all around that Cohen dropped the lawsuit, and in some ways the argument for privacy in this case becomes weaker once the possibility of a protracted and punitive lawsuit is off the table. Perhaps a lower threshold for unmasking anonymous Internet defendants when an individual plaintiff stipulates in advance not to pursue remedies other than nominal damages would be appropriate.
I don’t think this could work for cases when corporations want to unmask whistleblowers, or for other situations in which the plaintiff could seriously harm the defendant in other extralegal ways. And the line-drawing might make this standard impracticable. But still, mightn’t the threat of lost anonymity be exactly the right deterrent in many cases of online harassment?
Bret Cohen - August 25, 2009 at 10:19 pm
Yes, it’s troubling that there’s the threat of a CyberSLAPP here. But look at the issue in the context of the trend of Cahill, Dendrite, etc. (including the D.C. Solers case released last week). In those cases, the courts held that the plaintiffs were required to prove some (varying) margin of success greater than the ability to defeat a motion to dismiss. But by CyberSLAPP.org’s own definition, the lawsuit has to be frivolous. If a lawsuit can defeat summary judgment or some similar standard (absent the showing of malice), especially in the defamation context in which the decked is stacked against the plaintiff, then there should be no constitutional anti-SLAPP argument.
And I understand the appeal and important implications of a First Amendment argument, but if, as has often been cited, the lawsuit (despite its merit) is initiated to harass or intimidate, and this can be proven, doesn’t Rule 11 (or its state analogs) cover that sort of conduct? It’s just a slippery slope to start penalizing litigants for bringing meritorious lawsuits, unless an improper purpose for the suit can be affirmatively proven.
ParatrooperJJ - August 26, 2009 at 4:49 am
Did google give the blogger time to get a lawyer and file a Jane Doe appeal or did they immediatly turn over her name?
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ronbo - August 27, 2009 at 12:02 pm
I’m concerned about the CyberSLAPP potential, too, but I think this fact pattern may be unusual.
First, there was no great imbalance of wealth or power between plaintiff and defendant, as often occurs in SLAPP cases. Second, the plaintiff had ample reason to drop the underlying litigation – not just the defendant’s lack of means but also the knowledge that the defendant apparently was not prepared to escalate matters from insults to violence. Third, there was no issue of public interest involved, as typicaly seems to be the case in SLAPP litigation. Finally, the threshold ruling that calling Cohen a “ho” was an accusation of prostitution was so absurd that I doubt we will see anything like it anytime soon.
C Wilson - August 27, 2009 at 3:51 pm
@Brett Cohen: I think you mean “meritricious” not “meritorious”
Bret Cohen - August 28, 2009 at 11:02 am
You say tomato, I say tomahto
Michael Roberts. Internet Libel Victim's Advocate. - August 29, 2009 at 4:48 am
Keep in mind that the “Superior Court” as it is referred to in this case is actually one of the lowest courts in New York state. There are a couple of courts above the four appeal for this or for other cases.
Furthermore, any precedent set by this case only applies to that level of that court in New York. It might be considered as persuasive precedent for higher courts, or for courts in other jurisdictions, but it is certainly not binding precedent.
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