Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

A recent ruling about an alleged anonymous slanderous blogs about a New York City model made it to the front page of every news media on the Internet when a New York City Judge ruled that Google had to identify the name of the person who ran the blog called “Skanks of NYC.” When Liskula Cohen (the defamed model ) learned the identity of the anonymous blogger was Rosemary Port, a 27-year-old student at the Fashion Institute of Technology, Cohen decided to not pursue any slander claims against Port. In an interesting turn of events, now Port claims that Google somehow breached a fiduciary duty and Port’s attorney is bringing a claim against Google for $15M.

Internet Anonymity Protection

Without question the First Amendment of the US Constitution provides the right of free speech and citizens can anonymously make public statements with impunity, except if the statements are slanderous, libelous, or violate some law.

What Did the Judge Say?

Cohen filed a lawsuit in January 2009 against the unknown blogger (I assume Jane Doe) and in the normal course of a Cybersmear lawsuit a subpoena was issued to Google to learn the identity of the anonymous blogger. The legal question was whether the anonymous blogger breached the contractual terms of service with Google. If there was a breach by the blogger then the blogger lost their right to anonymity. You have to look at the Google Blog Terms of Service, Privacy Policy, and Content to determine if the blogger violated these terms. Google must have decided that Port violated the contractual terms and then whether her identity became public was up to the New York City Judge.

Apparently Manhattan Supreme Court Justice Joan Madden believed there was slander and wrote in her decision that "the thrust of the blog is that [Cohen] is a sexually promiscuous woman," and accordingly Google was obligated to disclose Port’s identity since Port violated the contract terms with Google.

How Does Cybersmear Work?

Cybersmear cases have been around for a while and often relate to anonymous postings on sites like Yahoo! Finance where people regularly make anonymous statements about stock values, alleged criminal behavior by corporate officers, and you can just image. Generally once the identity of John or Jane Doe is made public the parties work things out, the posting stop, and there are no headlines.

In this instance Port claims the only person on the Internet who saw "Skanks of NYC" blogs was Cohen, and ironically because of Cohen’s lawsuit and the alleged violate by Google of Port’s rights, now everyone on earth knows. I’m sure there a lesson in this case but generally I’m reminded of the New Yorker Cartoon where two dogs are talking and one says to the other “I had my own blog for a while, but decided to go back to pointless, incessant barking.”

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A recent story in the New York Times should send chills down the spines of anonymous bloggers since apparently prosecutors in New York issued a grand jury subpoena to help identify of certain people blogging on a website called Room 8. On the face of the subpoena in capital letters there was a warning that merely disclosing the very existence of the subpoena could impede the investigation and interfere with law enforcement. A clear message that someone would be prosecuted for disclosure of the subpoena.

After the threat of the a lawsuit for violation of free speech under the First Amendment of the Constitution the prosecutors withdrew the subpoena.

Anonymity and the Internet have been an issue for some time since the First Amendment protects free speech, and there are individuals who want to use post messages, emails, and have websites to say what they feel about issues without fear of reprisal. Over the years there has been a great deal of litigation against Joe and Jane Doe for cybersmear where anonymous postings are made about publically trade stocks on sites like Yahoo! Finance. Also lawsuits have been brought against Joe and Jane Doe for allegedly intruding on websites to steal information.

But bloggers are something of a different category since one of the points of a blog is make comments about social, political, sports, or any issue they feel. Some bloggers are happy to identify themselves, but since the First Amendment allows free speech some bloggers post anonymously.

In this case threatening to prosecute a blogger where it not clear that a crime had even been committed is very perplexing and the civil liberty groups are up in arms.

The courts have no body of law to depend on to rule on such complex cases, and most judges do not have personal experiences to draw on. This is true for the explosion of the use of the Internet as it changes our lives. For instance, in 1995 when the browser first was released making the Internet a public utility, no one could have foreseen Google, Facebook, or bloggers. The courts are generally slow to adopt to major social change because old laws do not apply well. However, over time the court system will have to deal with these complex issues brought about changes of the Internet.

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