Thursday, January 8, 2009

BREAKING 'SKANK' UPDATE: Google was NOT sued

Yesterday's Copyrights & Campaigns "skank" update relied on the New York Daily News' "reporting" on the Liskula Cohen blog controversy. Well, never again. The Daily News' lede "informed" us that "A Vogue cover girl is suing Google in an attempt to unmask the blogger who trashed her as a 'skank' and an 'old hag.'" (emphasis mine). But, in a C&C world exclusive (our first ever!), I can now inform you that Google was not sued!

Here's the scoop. Cohen wants to sue the people who posted nasty things about her on "Skanks in NYC." One problem: she doesn't know who they are. But Google, which hosts the blog, may. Or, rather, Google may have the IP addresses (and other identifying information) of the people who posted the allegedly defamatory comments. And once Cohen has the IP addresses, she can find out what ISP the alleged defamer(s) used to post the "skank"y accusations, which might lead her some day to some actual human beings (if one can even use that term for the people who created Skanks in NYC).

So what do you do if you're a wannabe plaintiff in NYC who doesn't like being called a "Skank in NYC," but you don't know whom to sue? Well, seek an "order for pre-action disclosure" under CPLR § 3102(c), of course. That's a special New York law that lets anyone ask a court for permission to seek discovery even before suing someone. Convenient! And that's exactly what Ms. Cohen did. She did NOT sue Google. Rather, she just asked a court for permission to demand that Google give her the alleged defamers' IP addresses. Google is not a defendant, but a mere "respondent." So I'm sure they're breathing easier up in Mountain View.

Now, a round of kudos. First, to Ms. Cohen's attorneys at Wagner Davis P.C. for NOT suing Google. As I explained yesterday, that would have been a sure route to dismissal under Section 230 of the Communications Decency Act (not to mention an embarrassing smackdown on the world's top Section 230 blog). Next, to Dareh Gregorian of the New York Post, who accurately reported on Jan. 6 that Cohen "is seeking a court order that would force Google to reveal the person or persons behind the postings so she can hold them accountable with a defamation lawsuit." The Post's article may have been a bit coy on the procedural posture of Ms. Cohen's fight, but at least it didn't name an incorrect defendant, when in fact there is no defendant yet at all. And lastly to Sam Bayard of the Citizen Media Law Project, whose application of actual New York defamation case law to the facts of this case advances our knowledge of the law of "skank" by several orders of magnitude.

The New York Supreme Court has scheduled a hearing on Ms. Cohen's request for discovery on January 26 at 9:30 am. C&C is currently accepting applications for a New York stringer available to cover the proceedings.

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