Cohen v. Google Inc., Index No. 100012/09 (N.Y. Co. August 17, 2009)

Google owns and operates Blogger.com, a free service that hosts users’ blogs. Petitioner, Liskula Cohen, alleges that on August 21, 2008, five different posts were published on Blogger under the title “Skanks of NYC” at http://skanksnyc.blogspot.com, which included “photographs, captions to the photographs, and commentary.” Cohen brought this petition seeking pre-action discovery claiming defamation for statements containing the words “skank,” “skanky,” “ho,” and “whoring.” Her petition alleges defamation per se claiming the statements impugned her chastity and negatively reflect on her business as a full-time model and that she would be a plaintiff in a defamation action if she could identify the person or persons who created the blog and published the posts about her.

Respondent Google did not have any substantive opposition to the motion (petitioner sought to obtain the information from Google informally but Google declined in favor of petitioner obtaining a court order); using the email provided during the registration of the blog in question, Google notified the “anonymous blogger” of the special proceeding. Non-party “anonymous blogger” appeared anonymously through counsel and submitted opposition papers.

“A petition for pre-action discovery should only be granted when the petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.”¹ “As a general rule, ‘the adequacy of merit rests within the sound discretion of the court.’”²

The elements for a cause of action for defamation “are a false statement, published without privilege or authority to a third party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se.”³

The anonymous blogger challenged the petition asserting that the statements, appearing as captions on the blog in question, were 1) posted by petitioner herself (according to the anonymous blogger’s attorney the images had been posted by the petitioner on various social networking sites such as Facebook), 2) “non-actionable opinions and/or hyperbole,” and 3) that no reasonable viewer of the blog would perceive the statements referring to petitioner as verifiable statements of fact. According to the blogger, the words “skank” and “ho” are used in a “loose hyperbolic” manner, and “have become a popular form of ‘trash talk’ ubiquitous across the Internet . . . and should be treated no differently than ‘jerk’ or any other form of loose and vague insult that the Constitution protects.”

Based on the above standards the court ruled that petitioner was entitled to pre-action discovery as she had “sufficiently established the merits of her proposed cause of action.” To determine whether a statement expresses fact or opinion is a question of law for the court based on an analysis of 1) whether the language at issue has an identifiable and readily understood meaning, 2) whether the statements are capable of being proven true or false, and 3) whether the statements taken as a whole within the context give the impression of being opinion rather than fact. The court determined that words such as “skank” and “ho” are very easily definable and have readily understood meanings both as slang and words in the English language. Additionally, because the captions denoting sexual promiscuity were attached to sexually provocative photographs, the impression of an average viewer would have been that the statements were factual and verifiable.

The court also rejected the blogger’s argument that the Internet serves as a modern day forum for conveying personal opinion and statements such as those found on his blog cannot be reasonably understood as factual assertions. Google was ordered to provide petitioner with information as to the identity of the Anonymous Blogger(s).

References

1 – Matter of Uddin v. New York City Transit Authority, 27 AD3d 265, 266 (1^st Dept 2006) (quoting Holzman v. Manhattan & Bronx Surface Transit Operation Authority, 271 A2d 346, 347 [1^st Dept 2000]).

2 – Matter of Peters v. Southeby’s Inc., 34 AD3d 29, 34 (1^st Dept 2006) (quoting Mediavila v. Gurman, 272 AD2d 146, 148 [1^st Dept 2000]).

3 – Dillon v. City of New York, 261 AD2d 34, 38 (1^st Dept 1999).

In Independent Newspapers, Inc. v. Brodie, 2009 WL 484956 the Court of Appeals of Maryland chose a standard for unmasking anonymous online posters in a defamation case from the multitude of standards available from other jurisdictions.

Independent Newspapers operates an Internet forum, which in March of 2006 included a “Centreville Eyesores” discussion thread containing statements posted by registered, but anonymous, users regarding Brodie, the fate of a house he sold, and the condition of a donut shop he owned.  Brodie filed suit against Independent Newspapers and three Doe defendants identified by their forum usernames alleging defamation and conspiracy to commit defamation.  Independent Newspapers filed a motion to dismiss or in the alternative for summary judgment, citing the Communications and Decency Act (“CDA”), 47 U.S.C. §230 (2000) as a defense, and a protective order shielding it from being compelled to identify the identities of the forum users.

The statements made by the Does named in the complaint related to Brodie’s decision to sell an allegedly historical home to developers who subsequently tore it down and the cleanliness of a donut shop he owned.  He was chastised for his decision to sell but it was actually the purchasing developer that bore the brunt of the allegedly defamatory statements.  Additionally, his shop was characterized as unsanitary.

The circuit court dismissed Independent Newspapers from the case holding that as “an interactive computer service” it was immune from a suit of defamation based on the statements made by its users under the CDA.  However, the court also compelled Independent Newspapers to comply with the subpoena to reveal the identity of the three identified users.  Following a motion for reconsideration of the order the court dismissed the cause of action based on the statements regarding the burning of Brodie’s former house because the statements actually referred to the developer and the developer’s actions.  Brodie responded with a letter stating that the posters actually responsible for the statements about the donut shop were two previously unidentified posters and served another subpoena ordering the identity of the previously named posters as well as the two new ones.  The ordered Independent Newspapers to comply with the subpoena and Independent Newspapers filed this appeal.

Circuit Court’s Order to Compel

On appeal the court held that the lower court judge had abused his discretion when he denied Independent Newspapers’ motion for a protective order because at the time he compelled the identification of the Does Brodie had not pleaded a valid defamation claim against any of them.  When the judge dismissed the cause of action relating to the statements about the house there no longer existed a cause of action against the original three Does and therefore their identity could not be compelled.  Additionally, since the subsequent two new Does were not named in the complaint, which was not timely amended, the cause of action against them was barred by the statute of limitations at the time the court ordered disclosure of their identities.  Since no valid cause of action existed the protective order should have been granted.

Guidance for Defamation Actions

Deciding the issue on a technicality the court went on to offer guidance to future trial courts deciding defamation cases.  This case presented the court with the difficulty of balancing a speaker’s First Amendment right of anonymity against the strength of a plaintiff’s case and their right to litigate a cause of action for defamation.  A speaker may not hide behind a pseudonym to avoid liability for defamatory remarks but frivolous suits and low standards to “unmask” posters may serve to chill speech and “discourage debate on important issues of public concern.”

According to the Maryland court only one other state supreme court has addressed the issue of disclosure of usernames in a civil law context, Delaware in Doe v. Cahill, 884 A.2d 451 (Del. 2005).  The Delaware Supreme Court overturned  a “good faith” standard requiring the plaintiff to establish:

(1) that they had a legitimate, good faith basis upon which to bring the underlying claim; (2) that               the identifying information sought was directly and materially related to their claim; and (3) that       the information could not be obtained from any other source.”

Instead the court applied a “summary judgment” standard whereby the plaintiff would have to support his defamation claim with “facts sufficient to defeat a summary judgment motion” before it could obtain the identify of an anonymous defendant.  Additionally the plaintiff would have to notify the poster “in a way that provides the poster with a reasonable opportunity to oppose the discovery request.”  One can only imagine that in the context of Internet speech this manner of notice could take the form of nontraditional means.

The Maryland court also looked to a number of other cases from varying jurisdictions applying other standards.  In Columbia Insurance Company v. Seescandy, 185 F.R.D. 573 (N.D. Cal. 1999) the California court required only a showing sufficient to survive a motion to dismiss in order to compel the identity of anonymous posters.  The “good faith” standard previously mentioned was upheld in Virginia in In re Subpoena Duces Tecum to American Online, Inc., 52 Va. Cir. 26, 37 (2006).  The Superior Court of New Jersey, Appellate Division in Dendrite International, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001) held that a plaintiff seeking to identify anonymous posters in a defamation action must present a prima facie case as well as “withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to the discovery request.”  The New Jersey court also required a plaintiff to post a message notifying the anonymous defendant of the discovery request on the same forum where the allegedly defamatory statement was made.

Determining that a “good faith” standard was too low and that a “summary judgment” standard was too onerous for potential plaintiffs, the court decided upon a “prima facie” standard with Dendrite-esque notice requirements.  Therefore,  in Maryland a trial court deciding an action for defamation concerning anonymous postings should (1) require the plaintiff to notify the poster of the pending subpoena, (2) withhold the action to afford the poster adequate time to respond, (3) require the plaintiff to identify and set forth the exact statements allegedly made by the poster, (4) determine whether the complaint has set forth a prima facie defamation action, and (5) balance the poster’s First Amendment anonymity right against the strength of the plaintiff’s case.

Cases involving similar issues have either recently been decided or are currently pending in a number of jurisdictions, including Texas and Virginia, with varying results leading some to predict this issue to come before the U.S. Supreme Court to resolve the standard for compelling an anonymous poster’s identity.