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Skanks in NYC, Victims, Competitors, Luck and the Law of Online Anonymity

I’m often asked how to reveal an “anonymous” online critic or defamer.  The answer: be lucky and pay between $2,500-$25,000 just to find out what computer is being used by the alleged offender.  Two recent news stories explain the point.

The Skanks in NYC

The first comes from model Liskusa Cohen who was able to get a court order to force Google’s Blogger service to reveal the author of a “Skanks in NYC” blog that posted derogatory comments about her.  You can see a CNN report on the suit here.  The blogger is Rosemary Port.  Now she is going to sue Google for $15,000,000 claiming Google violated her privacy actually suggesting Google owed her a fiduciary duty to protect her anonymity. 

The Google/Blogger privacy policy specifically states they will turn over information pursuant to a court order.   Regardless of what you think about anonymous bloggers and comments, it is hard to see Ms. Port as the victim in this case and it will take an interesting argument to make a jury sympathize with Ms. Port. 

Competitors Go Dirty Online

News item number two involves legal recruiters going at it online and now in court.  The JDJournal reports here that BCG Attorney Search and LegalAuthority are suing Robert E. Kinney of Kinney Recruiting for anonymously bashing BCG online. Through similar methods, BCG was able to confirm its critic was actually the owner of the competing recruiting firm. BCG sought the identity of “Albert” from RpOff Report and Kinney hired his own lawyers to help keep his identity a secret. Now that BCG has the identity of its tormentor, BCG is seeking $10 million in damages.

The Law

While some comentators are making it seem like these are groundbreaking suits because actual identities have been revealed, the law is actually quite developed in this area. Most states follow what is known as the Cahill test first spelled out in the Delaware case of Doe v. Cahill. The Cahill test requires a plaintiff, suing for defamation, to make a prima fascia case of defamation to find out the identity from an internet service provider. In Cahill, Cahill was a public figure, and to prevail in a defamation lawsuit, he had to prove that (1) Doe made a defamatory statement; (2) the statement was concerning Cahill; (3) the statement was published; (4) others would understand the statement to be defamatory; (5) the statement was false; and (6) Doe made the statement with actual malice. Once a court decides the plaintiff has enough facts to make an initial showing of a claim and can present facts that may defeat various First Amendment defenses, many courts will require the internet service provider to release the name.

The Luck

Often times, the only thing revealed is the location of the computer of the tormentor. Think about what information you have to provide to set up a Yahoo or Gmail account. Most of the time, to comment or to blog, you need to do little more than provide an email address. Therefore, if you wanted to remain truly anonymous, there are steps you could take that would prevent the disclosure of your identity even RipOff Report or Blogger was required to turn over what it had.  That is where the luck (and often the money) comes in. Apparently, the people now being sued in the two stories never thought their identities would be revealed. If they had, with some planning (and details I don’t really feel like going into or providing to people to freely defame), they could have remained anonymous.

The Lesson

You are almost never guaranteed anonymity. My mother was right: “If you don’t have anything nice to say, perhaps you shouldn’t say anything at all.” Anonymous speech has its place and deserves protection in many places. Dogging your competitor with fake reviews or trashing someone for the pure sport of it does not appear to be those places.  Just because you do it online with a fake name, doesn’t mean you may not have to answer for it in court.