Wednesday, 19 August 2009

The Liskula Cohen Case: Vogue and "Anonymous" Blogging

It is reported today tell that a US Court has ordered Google to disclose the IP address and email of an "anonymous" blogger.

This blogger had posted fairly strong - indeed insulting - remarks about an American model called Liskula Cohen.

She sought disclosure from Google of the IP and email address of the blogger. To their credit, Google seem to have insisted on a court order before disclosure.

The case is not yet about whether the remarks actually constitute a libel (an area of law which does exist under US law, notwithstanding the First Amendment guarantee of free speech) - that issue has not so far been tried; but about whether Google could be ordered to disclose IP and email address information of an "anonymous" poster to a potential plaintiff (in England, a claimant).

The New York Supreme Court appears to have made such an order.

But such an outcome would also be likely under English law.

In the Sheffield Wednesday supporter case of October 2007, the High Court ordered the disclosure of the details of a number of "anonymous" posters who had made serious allegations on a football discussion forum site. (In English law such an order is called a "Norwich Pharmacal" order after the leading case.)

And, as was seen in the Night Jack case (see my post here), the starting point for English courts will be that blogging is an essentially public activity, and so the author's identity cannot normally be protected under the law of privacy.

So in both English and (it would seem) US law, simply being anonymous on the internet is not an escape from potential legal liability and public disclosure.

One can, in certain circumstances, be held both legally and publicly accountable for supposedly "anonymous" posts and blogging.

If it is possible for a third party - such as Google - to be compelled to disclose one's email and IP address to a potential claimant, then that really is the risk one is taking when posting defamatory or other unlawful material on the internet.

One should never think of anonymous internet abuse as merely inconsequential graffiti.


Scote said...

" whether Google could be ordered to disclose IP and email address information of an "anonymous" poster to a potential plaintiff (in England, a claimant).

Which I assume means the plaintiff may file a libel action in England, where the likelihood of winning such a case is almost guaranteed...


From what I read the remarks about the plaintiff were quite unflattering but seemed to be opinion rather than fact, but that certainly isn't an issue I'd want to try in the UK

ReputationWhiz said...

Looks like we had very similar thoughts about the end of the Wild West online, but you might have beat me to it by a couple seconds. Here's my take on the same issues about anonymity online and how the cloak of anonymity is not nearly as thick as people think it is.

nofxneversoldout said...

The issue is whether the publication of those comments were "calculated to injure the reputation of another, by exposing him (her) to hatred, contempt or ridicule" - as is the famous quote regarding defamation.

If it's just opinion, the blogger is in twice as much legal trouble. If its fact, they still have an uphill battle to prove what they said is true. I'm not really sure how one would go about proving someone is a "whoreing / psychotic / lying" person.

I believe this decision to be an excellent step forward for people having an avenue to seek redress from the problem of internet anonymity. And full credit to Google for simply saying "not without a Court order", which is spot on from them.

gimpy said...

Doesn't the 'not without a court order' attitude create a system which favours those rich enough to afford a good lawyer? Does hunting down anonymous commentators on the internet fit the criteria for legal aid?

Whatever the the legal and moral basis for the decision it is alarming how often the law favours those who can afford a lawyer.

Jack of Kent said...

Hi Gimpy

There is something to what you say.

However, the requirement of a court order means that there has to be some objective justification for the application, and thereby some protection; it cannot just be demanded by one party against the other.

Direct bilateral demands can also favour the side with the more expensive lawyers; at least needing a court order means that a third party - the court - has to be satisfied of the merits.

Court orders are not entirely a selfish ploy by dastardly lawyers!


gimpy said...

HI Jack,

Sorry, my comment does read a bit anti-lawyer, doesn't it?

You can hardly blame someone for wanting to be paid for their work. I'm just concerned this could go the way of the British libel system, in the absence of legal aid only those able to afford lawyers will get their justice.

Perhaps some legislation enshrining the right to anonymous/pseudononymous comment within the limits of speech?

gfreeman said...

But there is no obligation on the blog provider (Google, in this case) to gather information about its bloggers or commenters, right? So simply using a proxy and not disclosing any other details (such as email addresses) at any point should suffice to protect the anonymous commentary. Right?

ivan said...

According to The Guardian, Cohen recognised the email address revealed to her: it was that of an acquaintance. She has spoken to her on the phone to "forgive her", and there will be no further legal action, though no apology was forthcoming.

I wonder whether Mr Justice Eady would rule brief comments such as "lying, whoring", etc, were just abuse, or statements of fact. I know what I think they are.

theundergroundrestaurant said...

What a terrible position Ms Cohen was in! Terrible insults on the internet about her, and to get them removed just gave those insults more publicity.
I'm not sure what 'Ivan' means about 'statements of fact' but it sounds pretty nasty.
I would have like to have come to your talk on blogging law Jack. Let me know if you do another one...