Can You Be Sued for Unmasking an Anonymous Blogger?
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.