Lessons learned from the Skanks in NYC (Or: The Future of Anonymous Online Commentary)
The attorney for outed blogger Rosemary Port has compared ‘Skanks in NYC’ to the Federalist Papers and argued that her anonymity is as important as was James Madison’s. The New York trial judge said “Uh-Uh” and ordered Google to turn over her info, which Google did. Many have presented this episode as the tombstone for anonymous online commentary. The New York Post ran a piece, Cyber-Slimers Beware, about a former New Jersey mayor who plans to go after his online tormenters and use the courts to unmask them.
While this case will certainly open the door for others who wish to out anonymous bloggers and commentators, IP address gatekeepers and the legal system can still slam that door in their faces when their causes for action are baseless.
I’ve talked with the experts and have some takeaway lessons – in list form no less! — from the Liskula Cohen vs. Rosemary Port vs. Google kerscuffle (a.k.a. The Skank Papers Episode).
1. Defamation online is as illegal as is defamation offline.
Anonymous speech is important. It’s a constitutional right. But it’s meant to prevent the suppression of subversive ideas and to protect unpopular individuals from retaliation: whistleblowers, government critics, victims. Not those using the cover of anonymity for a vicious, slanderous catfight.
Freedom of speech needs to be balanced with the right not to be unfairly demeaned by anonymous online commentators. The same rules of defamation apply online as they do offline. Take the word “skank.” “Whore literally means prostitute. Allegations of sexual conduct and calling someone a skank are defamatory. It’s especially damaging to a woman who is dependent on her looks and her reputation for her career [as a model],” said Kaimipono Wenger, an assistant professor at Thomas Jefferson law school.
This is not the first time anonymous online commenters have been outed for defaming women online. Two female Yale Law students defamed on the gossip site AutoAdmit filed a defamation suit and had their anonymous commenters outed by the court last year. See a lengthy article about this by David Margolick in the now-defunct Portfolio magazine.
2. Don’t start a blog devoted to defaming one person or you risk being outed.
Port, a 29-year-old student at the New York Fashion Institute of Technology, started the ‘Skanks in NYC’ blog last year after Cohen allegedly badmouthed her to Port’s boyfriend. Given the title of her blog, perhaps Port planned to enlighten readers with reports of various “skanks” about town. If so, she must have gotten lazy, anonymously writing just five posts, all about Cohen, calling her “a ho,” “psychotic, lying, whoring,” accompanied by unflattering photos.
Creating a blog devoted to hating on one person who is not a public figure WILL probably get you in trouble.
3. Defame someone who is a marginal public figure on someone else’s blog and you might be okay.
Two years ago, Pamela Greenbaum, a Long Island school board member, went after the blog Orthomom, issuing a subpoena to Google-owned Blogspot, where the blog was hosted. Anonymous commenters on Orthomom had called Greenbaum “ugly,” a “bigot,” and “an anti-Semite,” after Greenbaum made a controversial decision regarding public funding for a program for the Orthodox Jewish community. In that case, the New York courts ruled in favor of protecting anonymity, as the comments were not defamatory and were instead “protected opinion.”
(See more on that here.)
4. It’s pretty easy to send a subpoena, but it takes a good reason to get a court to back it up and for Google to act on it.
Drafting and sending a subpoena is pretty easy for most lawyers. There are even pre-printed forms available at your local courthouse. It’s harder to get a court-ordered one, backed up by a judge, which is what you generally need to force the tech giants to actually comply with a request. And it takes persistence to wade your way through the system. It took Cohen more than eight months to finally unmask Port. The Yale Law students’ case took more than a year.
Some people — like Port, who has threatened a $15 million lawsuit against Google — seem to think Google, Yahoo, Microsoft, AOL, and other IP address gatekeepers are obligated to put a moat around their digital information and defend it with shields, swords, and Constitution-wielding lawyers. But when these tech giants get a subpoena, especially a court-issued one, they are legally required to hand over the requested information. Port’s suit against Google for not acting as a white knight to protect the virtue of ‘Skanks in NYC’ is without merit, say legal experts.
But Google and co. don’t comply with just any old subpoena sent their way. In the case of the Skank Papers, they refused to comply with the subpoena that Cohen’s lawyer sent. They refused to turn over Port’s info until they received a subpoena from the New York court, backed up by a judge’s order.
The terms of service you agree to when you sign up for a free blogging service don’t include thousands of dollars worth of legal defense, but these companies will fight battles when they see fit. “We will only provide information about a user in response to a subpoena or other court order,” wrote Google spokesperson Andrew Pederson in an e-mail. “At the same time, we have a legal team whose job is to scrutinize these requests and make sure they meet not only the letter but the spirit of the law. In fact, we have a history of being an advocate for user privacy. In 2006, we went to court to resist a Department of Justice subpoena for millions of search queries on the grounds that it was excessive and invaded our users’ privacy. The judge ultimately ruled in Google’s favor, establishing an important precedent for user privacy.”
In the case of subpoenas in civil suits, companies like Google will usually give their users 15-20 days notice before turning information over, in case users want to fight the subpoena. But that’s a corporate policy, and not a legal requirement.
“The problem is that the average person might not have the resources or wherewithal to know how to go to court and get a subpoena quashed,” said Matt Zimmerman, an attorney at the Electronic Frontier Foundation (EFF). Port had the resources and wherewithal but the spirit of the law was not behind her defamatory online speech.
5. CyberSLAPPs can be a good thing.
“It’s improper to use the legal process to unmask anonymous bloggers. Courts should be very reluctant to force that unmasking,” said Daniel Solove, George Washington Law School professor and author of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. “There should be a very high standard to get that identity, and the identity should be kept confidential for as long as possible.”
Solove thinks the court gave up Port’s identity too easily, saying it should have been revealed under a protective order barring Cohen from publicizing it, or withheld until the case actually headed to trial.
The American Civil Liberties Union, the Center for Democracy and Technology, and the Electronic Frontier Foundation have labeled cases like this one “CyberSLAPPs”: frivolous lawsuits with the sole purpose of issuing a subpoena to a Web site or Internet Service Provider (ISP) to discover the identity of an anonymous critic and to intimidate or silence them. Cohen’s decision to drop her lawsuit a day after she filed it and publicized Port’s name lends credence to that label.
The ACLU and company want to protect our rights to make irreverent statements anonymously online without fear of being outed and punished (though to be fair, these groups are more concerned about protecting valid criticism than skanky allegations). Protection against CyberSLAPPS is warranted more in cases of asymmetric power structures. “If an anonymous writer called Hillary Clinton a skank because of a political decision she made, I think you would have a different decision from the court,” said Zimmerman of the EFF.
Kaimipono Wenger, assistant professor at Thomas Jefferson law school, says that Port deserved to be CyberSLAPPed.
“Anonymity online gives people the perception that they can say things online that they wouldn’t normally say in person,” Wenger said.
“It’s not a bad thing for people to take responsibility for what they say and do online. I think we’ve gotten too far away from that ethos,” said Christopher Wolf, a partner at corporate law firm Hogan & Hartson LLP, and co-chair of the Future of Privacy Forum think tank.
Anonymity online is not a license to break the law and ruin reputations. Anonymity online is also not absolute.
If you’re using the unprecedented power of the Web to broadcast a Federalist Papers-esque message to the entire world, the system will fight for you. But if you’re putting the Skank Papers online, think about whether you would want the whole world to know you’re the one behind the message.