Someone, somewhere did not like Liskula Cohen, a model in her 30s who lives in New York. A blog was launched from Google’s Blogger platform, apparently devoted to maligning her, complete with uncomplimentary photos. To be sure, such online attacks are hardly rare; indeed, Cohen’s story diverges from most such incidents because she fought back — and it appears she has been, to some degree, successful.
Cohen complained to Google, according to media accounts, and requested the name of the poster. Google initially refused but was then ordered by a judge to hand over the name. Cohen reportedly knows this woman, albeit distantly. Now, the ball is in her court. She can sue for defamation — and probably lose, at least according to attorneys contacted for this article. She could also publicly name the blogger, who could find herself on the receiving end of the blogosphere’s wrath.
Naked on the Web
Whatever Cohen decides to do, this event — as is usually the case with legal disputes spawned by the Internet — has upended a bit of conventional wisdom of what can and cannot be done online: Namely, no matter what you do to cover your tracks, there is perhaps no such thing as anonymity on the Web.
For that reason alone, people should be very careful about what they say online, Mike Weinsten, an entertainment attorney at the firm Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, told TechNewsWorld. “The fact that anything can be blasted across the world makes the potential damages for defamation that much greater,” he said.
What this incident didn’t do is suddenly chip away at protections in the First Amendment — which does not provide cover for defamation, but does give wide latitude to what defamation actually is.
On the blog, Cohen’s antagonist reportedly called her a “skank” — and worse. Such comments, no matter how juvenile and tasteless, are not considered defamation, Weinsten explained.
“These sort of hyperbolic statements — general name-calling, negative opinions based on non-defamatory facts — that is protected under the First Amendment,” he said. “Now, if the blogger had said she had a child out of wedlock, that could be considered defamatory because it is a statement of fact.”
It is also possible, Weinsten said, that the blogger could be held accountable for calling Cohen a “whore,” as she reportedly did. “Depending on the context, that can be considered a statement of fact.”
Another myth debunked by the Cohen case: Online service providers will hang tough for the privacy of their customers. True, many service providers are protected by the Communications Decency Act for defamatory speech that might happen on their platforms. However, they and other online service providers are still subject to court orders and government pressure.
People can and will sue to get this information, Jeffrey Spitz, attorney for Greenberg Glusker, told TechNewsWorld.
“It is not out of the ordinary when issues arise that are potentially actionable for a person who has been arguably damaged to get the identity of the blogger,” he said.
Cohen argued that the name-calling had damaged her ability to find modeling work. This argument could work for anyone, Spitz said. “Defamation is damage to reputation. Even if you are not a model, depending on the nasty names being used, if they cross the line between opinion and fact, then you can make an argument that you have a prima facie claim and be able to get that information.”
One fact not highlighted in this episode is Cohen’s status as a public person. Generally speaking, it is much harder to prove defamation when you are a public official, public figure or limited-purpose public figure, Matthew Albaugh, an attorney with Baker & Daniels, told TechNewsWorld.
Such plaintiffs “must establish that the defendant acted with actual malice with clear and convincing evidence. If the plaintiff is a private person, the plaintiff generally must only show that the defendant acted negligently. If the private person wants to recover punitive damages, he or she must show evidence of actual malice,” he said.
In this case, Albaugh said, it is quite likely that Cohen would be deemed a public figure, or at a minimum a limited-purpose public figure. “As such, she’d need to demonstrate that the blogger acted with actual malice in making the crude statements about her,” he said.
There are two issues are:
1) Should the net operate on the belief that a masked or false ID is ethical or even legal? One cannot have these in real life? Why on the net?
2)Should the First Amendment protect someone who is using a fake or masked ID?
– I agree with Cohen that she should know who is talking about her. The EFF and others have argued against this. I think EFF is very wrong about protecting the identities of anyone on the net even if a crime is committed in the case of the suicide inducing mother. One cannot run around with masked and false IDs in real world, why is anyone allowed to do so legally on the web? There are many reasons to force people to use their real names and not hide. If you want to say something you should say it and not hide behind the net masks!
– I also agree with the First Amendment proponents that one has the right to say anything protected by the Constitution. However the constitution does not allow for false and hidden IDs in person. Therefore the same rules should apply here.
So either way, IMHO, this is a good thing for the First Amendment and also getting rid of the false sense of lawlessness on the web! just like the wild West, the web needs to mature to be a tool
for commerce and information processing, NOT scams and phonies!
BTW, in keeping with the First Amendment protection, IMHO, anyone practicing Family Law must be made to look within themselves on how much misery they create for a few dollars! Family Law in this country is out of date and misery causing tool that discriminates against fathers! Child Support and Visitations should be equal opportunity.
I have question for you. Do you go around in real life with that name? The right to privacy is an illusion. You have the right to privacy as long as you don’t do anything illegal or unethical. Are you protected if you steal, disparage or hurt someone in the real world? Why should you get such right in the virtual world where you have a much wider audience?
I think it is rather naive argument using EULA to say you should get protection when you only quote a small part of the EULA. The rest says that if you do something wrong, you can expect to be revealed.
This story has sparked a huge debate over free speech. I think the real debate should be over how much privacy I can expect when I sign up for "private accounts". When a site’s EULA says "information will not be shared" I expect that to mean they will at least put up a small resistance to the first peon judge waving a subpoena.
Google has already capitulated to China in a similar matter and the person involved has not been seen since. How long before this power is unleashed on us?
Fascinating story. Too bad this Judge didn’t have jurisdiction over Heidemarie Schnitzer, the Austrian national who stalked and threatened to murder actor David Caruso and his family members. Before her arrest, Schnitzer maintained four hate blogs which she used to promote an internet hate campaign against the actor. For the time being, Schnitzer is cooling her heals in an Austrian jail cell after being convicted earlier this year of stalking and mailing death threats.