12-16-2009 New York:
New York State Supreme Court Judge Joan Madden ordered Google to turn over account information about an anonymous blogger to model Liskula Cohen in order to enable her to pursue a claim of defamation. The blogger had used Google's blogging service to create a blog entitled "Skanks in NYC" and had posted derogatory pictures and references to the model. Cohen claimed that the blog led to her losing potential business opportunities. When Cohen originally sought to find out who had posted the content, Google resisted, maintaining that its privacy policy did not permit disclosure of the blogger's account information.
The concept of the protection of free speech - especially anonymous speech - traces its roots back to Thomas Payne's pamphlet Common Sense.(1) First published in 1776, it anonymously challenged the authority of Great Britain in the New World and is widely regarded as the first work to ask openly for independence for the Colonies from Britain.
Since then, state courts in the United States have differed in their interpretations regarding the extent of these rights and the purpose for which protection is appropriate. The legal principle appears simple: if the speaker (whether anonymous or not) is expressing an idea or an opinion or belief, he or she is more likely to enjoy protection. Although there are limitations on freedom of expression (eg, shouting 'fire' in a crowded theatre), political expression has typically enjoyed greater protection than 'commercial' speech - one being seen as fundamental to a society's encouragement of the free flow of ideas, the other designed to promote a commercial product, service or brand in a free market economy.
At the other end of the spectrum, and generally not protected, are public expressions that are clearly and solely intended to hurt someone, where actual harm can be shown from intentional or malicious public expression or, as was determined by the New York court in this case, where an illegal or actionable act was or was likely to have been committed - in this case, defamation.
While it is difficult to pinpoint a single factor that will always favour protection, US jurisprudence affords the strong legal shield of anonymity to protect individuals from the potential swords of those in power or from anyone who might seek to stifle dissent or unpopular ideas. For example, in 2005 a blogger who posted comments against a politician, accusing him of "obvious mental deterioration", was ultimately protected by the Delaware Supreme Court, which expressed concern over the potentially "chilling effect" on anonymous speech a contrary ruling might have. In this case the blogger referred to a politician and the court ruled that in order to justify revealing the identity of an anonymous blogger, the plaintiff must provide evidence sufficient to all elements of the claim if the case were to go to trial. Because the court concluded that no reasonable person would believe the blogger's statements to be factual, no action for defamation could be sustained and the court dismissed the case.(2) For bloggers, especially political and social bloggers, this represented a significant landmark and affirmation of the substantial protection afforded to anonymous posting by the US Constitution.
In a subsequent 2008 case, a Maryland Court of Appeals (Independent Newspapers, Inc v Zebulon J Brodie)(3) similarly concluded that anonymous posts should be protected and set out an approach first detailed in a New Jersey case(4) describing the steps that judges should take in deciding whether to compel disclosure of anonymous online speakers in future cases.
Unlike in previous cases, and potentially distinguishing the Cohen Case first referenced above, the blogger here targeted Cohen intentionally, exclusively and individually. Although the defendant argued the postings were just "trash talk" and only opinion, the judge noted that if Cohen could prove the blogger's statements were factually inaccurate, it would refute the argument that the posts were merely opinion and would support a legal claim of defamation.
Online speech is coming under increased scrutiny and regulators and courts appear to be gradually wearing away the virtually complete immunity that anonymous bloggers once enjoyed, seeking to define the contours of what is and is not permissible conduct on the Web. ..Source.. Reed Smith LLP, Joseph I Rosenbaum
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