Monday, January 12, 2009

Bloggers Have A Right to Anonymity

Courts Are Beginning to Address Anonymity of Bloggers

January 10, 2009

By Norm Kent

In New York City last week, a Vogue model made headlines not by being on the cover of a new magazine but by being referred to as a ‘skank’ on a rather inconsequential and insignificant blog.

The model, Liskula Cohen, has now filed a lawsuit against Google and its website, seeking the identity of the anonymous blogger.

Although the entire blog was generated on a single day and it contains a total of solely five posts, the blog entries refer to the model derogatorily as a "ho," a “#1 skanky superstar,” and otherwise depict her as sexually promiscuous, dishonest, and unclean.

Because the site is hosted through Google's Blogger service, Cohen is asking the court to order Google to disclose identifying information including the blogger's name, address, telephone number and email.

As a policy matter, Google does not reveal bloggers' identities without a court order. "We take great care to respect privacy concerns and will only provide information about a user in response to a subpoena or other court order," a spokesperson said.

On January 5, the court issued an "order to show cause," which requires Google to appear before the court on January 26 for arguments about whether disclosure of the blogger's identity should be ordered.

New York attorney Steven Wagner represents Cohen, who in the past appeared on the cover of Australian Vogue. He alleges in the complaint that the blog posting is defamatory, libelous, and costing his client possible employment.

Wagner acknowledged that it is no easy legal task to identify bloggers who lob insults anonymously, but re-asserted his position that the publications were defamatory “and you shouldn’t just get away with this.”

If Mr. Wagner were practicing in South Florida and reading the JAABLOG, he could find work very quickly. But he would have a tough legal road ahead of him.

While Florida has no uniform standard to go by, courts around the country apply at least a two-pronged test before requiring the release of the name of a blogger, if it can even be found. First, the Plaintiff has to show that the blogger’s remarks are defamatory. For a statement to be defamatory, it first must be false, and then it has to expose a person to ridicule, contempt, or injure him in his business or trade.

Second, once the plaintiff establishes defamation, the court then balances the strength of his underlying legal claim and the need for disclosure against the strength of the blogger's claim to First Amendment protection. Courts have recognized that the right to speak anonymously is a fundamental part of the First Amendment right to free speech, and accordingly some level of scrutiny is required before stripping an anonymous Internet speaker of that right. It is a tough road to hoe; a high burden to meet.

When considering a subpoena or other discovery request seeking to unmask a speaker, courts have to balance these two competing rights. But courts have struck the balance in different ways, and the result is a number of different legal tests for deciding whether or not to allow a blogger/speaker's identity to be revealed. These tests or standards can be placed into roughly two categories: (1) high-burden tests and (2) low-burden tests.

Every state is of course different, but most are leaning towards protecting the rights of anonymous bloggers. Many states are mandating a high burden for the Plaintiffs, and appropriately protecting bloggers rights. You can read more about this at the Electronic Frontier Foundation website.

Florida has few cases on point thus far. As you can see from the New York suit, it does not require a blog as prolific as JAABLOG to initiate an action. If defamation is alleged, the legal issue to be determined is whether a blog could be judicially directed to turn over to a court the ISP addresses of anonymous authors if subpoenaed. The answer is yes, it could happen, but there are many hurdles to climb. That is the situation facing Google in New York today. They will fight the subpoena, as we would do here.

A factor that might affect what test or standard applies is the character of the speech activity over which you are sued. Some lawsuits clearly implicate important First Amendment concerns -- criticism of public officials or government policies, whistleblower activities, to name a few. That would seem to protect the bulk of the communications on this JAABLOG.

I think you can reasonably predict that a court is more likely to apply a high-burden standard when "core" First Amendment values are involved, and less likely to do so when the issues appear personal or otherwise unrelated to matters of public concern.

I think that the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, I believe an author's decision to remain anonymous is an aspect of the freedom of speech protected by the First Amendment. Nevertheless, when you are significantly causing harm to another, courts will have to weigh your right to anonymity versus the purported victim’s right to redress his grievances.

I have always been persuaded that courage is standing up and identifying yourself, not cowering in a closet. As a person, you grow and mature by the adversities you engage. I would defend a blogger’s right to do so anonymously, but I would never want to be in that position myself.

According to the nonprofit Media Law Resource Center, there have been over 150 documented civil court actions involving bloggers. At least seven cases have resulted in verdicts against bloggers, with cumulative penalties totaling $18.5 million. But I would not lose sleep over this. The Internet is growing exponentially every moment, with thousands of new blogs getting created on the Internet every day.
By the way, the blog itself is not liable for the libel. Federal laws protect it. While newspapers can still be sued for the residual publications of libel, blog sites such as these are shielded under the Communications and Decency Act, specifically Section 230.

Still, if you blog frequently and loosely, make an effort to understand liability. There are limits. It’s kind of like the speedometer on your car. Just because the odometer goes up to 180 mph does not mean you should always drive your car down Broward Boulevard at that speed.

Exercise a little discretion and caution and you will further your rights to post anonymously and induce courts to continue to protect them. What you learn today might protect you from a lawsuit tomorrow. Besides, it might protect me from having to go to court to defend your first amendment right to be a jerk. You have that right, and let’s face it, many of you use it.!

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