Has blogging made critics out of us all? Maybe so, but we still have to watch what we say as illustrated in a recent New York case, Cohen v. Google/Blogger.com. Fashion model Liskula Cohen filed suit demanding that Google disclose the name of an anonymous blogger (who we now know was Rosemary Port) who created and operated the blog now infamously known as “Skanks in NYC.” Cohen alleged that Port posted sexually suggestive pictures featuring her, together with derogatory comments about her — labeling her as, among other things, “skank,” “ho” and “whoring.” Google refused to reveal the blogger’s IP address, citing its policies on protecting the privacy of bloggers.
In New York, the elements for a cause of action for defamation “are a false statement, published without privilege or authorization to a third-party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se.” Cohen petitioned the court that because Port posted, essentially, “per se” defamatory content about her, the blogger’s identity must be disclosed to enable her to pursue her viable claim for defamation. Port filed papers on an anonymous basis in response to the petition, claiming that the statements were “non-actionable opinion and/or hyperbole,” and further argued that even if the words were capable of defamatory meaning, “the context here negates any impression that a verifiable factual assertion was intended” since blogs “have evolved as the modern day soapbox for one’s personal opinions,” by “providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken, a protected forum for voicing gripes, leveling invective, and ranting about anything at all.” While this pleading is certainly an accurate description of how blogs are frequently used by bloggers, the court was not persuaded that Port’s identity should be protected from disclosure because her statements were “reasonably susceptible of a defamatory connotation and are actionable.” The court held that Cohen was entitled to an order directing Google to disclose information as to the identity of the blogger.
It turns out that Port is an acquaintance of Cohen who frequently attended the same social functions as she did. With Port’s identity discovered, it has been reported that Cohen will file a defamation suit against her. In turn, Port has indicated that she will sue Google for $15 million for failure to protect her privacy, claiming that Google “breached its fiduciary duty to protect her expectation of anonymity.” While the merits of Cohen’s claim against Port and Port’s claim against Google are yet to be determined, the lesson for every blogger is that he or she may not hide behind a mask of anonymity with respect to blogs that may cross legal lines and create causes of action, such as defamation.
Companies also need to be vigilant in connection with the development of policies around blogging by employees or agents. Imagine the scenario where an employee of a consumer products manufacturer posts malicious statements on a consumer opinion blog regarding a competing product. The rival company petitions for the identity of the blogger, and ultimately discovers that the blogger is an employee of a competitor. In this situation, not only the individual, but potentially the company as well, may be subject to a claim by the rival company for unfair competition, or for certain other Lanham Act or Communications Decency Act claims.
Tread carefully with your blogging, or you might get a flogging. (Sorry, we couldn’t resist).