The high cost of Internet (de)fame

Where does free speech end and libel begin? It's not an easy question to answer, says the attorney for the now-infamous 'Skanks in NYC' blogger

If it seems like Notes From the Field is turning  into the Notes From the Land of Internet Defamation and Anonymity, my apologies. But this is a topic that I've sunk my teeth into and now I can't seem to unsink them.

After my recent posts about Liskula Cohen ("Skanks for nothing: Google must identify 'anonymous' blogger") and TCI Journal ("Why Internet anonymity matters"), I had the opportunity to chat with attorney Anne W. Salisbury of Guzov Ofsink, LLC. She answered a number of questions I had about both cases, as well as those from some Cringesters who wrote in. So thought I'd share her insights with the rest of you out there in Cringeville.

[ Also on InfoWorld: "Skanks for nothing: Google must identify 'anonymous' blogger" and "Why Internet anonymity matters" | Stay up to date on Robert X. Cringely's musings and observations with InfoWorld's Notes from the Underground newsletter. ]

Salisbury is the attorney who defended then-anonymous Skanks in NYC blogger Rosemary Port in her unsuccessful efforts to keep her identity out of the public eye. (She is not, however, representing Port in her $15 million suit against Google for spilling the beans.)

Among other things, Port called former cover girl Liskula Cohen "a psychotic, lying, whoring, still going to clubs at her age, skank" on her short-lived blog. (Salisbury adds that before Cohen's suit became public knowledge, that blog had a handful of page views -- half of them from Salisbury. The morning the news of the lawsuit hit the Web, it clocked 16,000.)

But what does and doesn't constitute defamation is a complicated question, says Salisbury. The answer depends on who's doing the defaming, who's allegedly being defamed, whether it's a statement of fact or clearly an opinion, whether the person making the statement believes it's accurate (even if it isn't), and so on.

For example, if it's a journalist making a statement about a public figure that he or she believes to be true, there's virtually no grounds for a suit. (Which doesn't mean the public figure won't file one anyway; so far, nobody's bothered to sue me, thank God.) If it's a private person spreading public lies about another private person, the defamation factor goes way up. For everything in between, it's a judgment call.

Of course, defining "public figure" or -- in the age of the five-minute blog -- "journalist" is not so simple either. There are only about five cases that can be used as precedent, says Salisbury, and the "test" a particular court chooses has a huge bearing on the outcome of the case.

Salisbury argued for the strictest test, which required Cohen's attorneys demonstrate actual libel before ordering Google to surrender the name (or in this case, the IP address) of the Skanks in NYC blogger. The court disagreed and went with an easier test. She also argued that in the Liskula Cohen case, the blogger was stating opinion, not fact -- and thus her statements did not qualify as libel.

"Defamation has to be verifiably true or not true," says Salisbury. "How do you prove in court that you are or are not a skank? How do you even define it?"

(Just to be clear: I still believe anonymous attacks are wrong, even if they're just someone's opinion. I'm not saying you shouldn't have the right to say nasty things, I'm arguing you should own up to them. There are good reasons for maintaining anonymity, but cowardice isn't one of them.)

The TCI Journal case, says Salisbury, demonstrates the slippery slope of using the legal system to identify someone before it's proven they have or haven't libeled someone else. In this case, an anonymously edited news site in Turks & Caicos is being sued by a land developer seeking to identify the people running the site. The developer is accused of bribing the now-deposed-governor premier of the island in exchange for very favorable land deals and has been making a vigorous effort to keep that information out of the public record. (Too late, it seems.)

[Note: An earlier version of this post said the governor of Turks & Caicos was deposed. It was Premier Michael Misick who was accused of taking bribes and removed from office by British authorities. Sorry for the error. - RXC]

Apparently, all the land developer had to do was file a document with a court in Santa Clara, Calif., along with a fee of $355, to demand Google release their identities. Like most service providers in this situation, Google is taking a hands-off approach and letting the two parties fight it out among themselves.

The as-yet-anonymous editors of TCI Journal sent me a note:

It is our belief that they were simply hoping no one would show up and they would get whatever information Google might release and then use it in a jurisdiction such as the UK were the libel laws are more slanted towards plaintiffs.

Also: The TCIJ folks say I erred when I called them "muckrakers." Though there appears to be no shortage of muck in the Caribbean, they prefer to call themselves a site "devoted to Good Governance and Public Policy." They also say they've secured the services of a "prominent attorney" and added the following:

We will be responding to the subpoena in court and are hopefully that Google will lend their weight behind our position.  Google is still considering if and how it will respond to this particular case.

With these two cases suddenly front and center, Salisbury believes we are at a "defining moment" in the age of Internet anonymity. I think she may be right. But how it will be defined -- and who will get to define it -- aren't so clear.

No, I'm not done with this topic yet. Got more to say about Net anonymity and defamity? Post it below or e-mail me: cringe@infoworld.com.

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