Monday, August 24, 2009

'Skank' blogger to sue Google? Good luck.

Rosemary Port, revealed to be the authoress of the "Skanks in NYC" blog that allegedly defamed model Liskula Cohen, now plans to bring a "$15 million federal lawsuit against" Google for revealing Port's identity, the Daily News reports.

To which I say: good luck.

Here's the legal background. Cohen sought to sue the blogger behind "Skanks in NYC" for defamation. But she didn't know who the blogger was. So she initiated proceedings in New York state court for pre-action discovery under CPLR § 3102(c), asking a judge to order Google, which hosted the blog through its Blogger service, to produce identifying information (e.g., email and IP address) to Cohen. Port (while remaining anonymous), hired attorneys to resist Cohen's demand for information. She argued that the words in the blog were not capable of defamatory meaning, and that the revelation of her identity would violate her constitutional right to speak anonymously.

Google, for its part, sat on the sidelines, submitting " substantive opposition" (p. 1) to Cohen's application under section 3102(c). Port told the Daily News, "When I was being defended by attorneys for Google, I thought my right to privacy was being protected." But I think she is seriously mistaken if she thought she "was being defended by attorneys for Google." Again, Google did not resist Cohen's discovery action, and Google's attorneys owe their loyalty to Google, not Port. Google wouldn't turn over the information voluntarily, but as soon as Cohen obtained her court order, Google complied, producing an email address associated with the Blogger account, from which Cohen was quickly able to identify Port.

But now, according to the Daily News, Port will "charge Google 'breached its fiduciary duty to protect her expectation of anonymity,' said her high-powered attorney Salvatore Strazzullo." (Please do make sure to check out the web site of said "high-powered attorney," wherein he boasts that he has been "glorified as an outspoken attorney BY THE INSIDER television show and called 'a cross between a bulldog and Chihuahua' BY NY POST WRITER ANDREA PEYSER.")

No matter how "high-powered" her attorneys, I'm at a loss to see how Port has any sort of claim against Google here. Port's attorneys argued in court to protect her anonymity -- and lost. Is she saying that if Google's attorneys had actively opposed the discovery action, the result would have been different? That seems highly doubtful; the judge fully considered the relevant arguments and precedent, and made a decision that First Amendment expert Sam Bayard of the Citizen Media Law Project concluded is "probably the right call at this stage of the lawsuit." Moreover, Port knew exactly what she was getting into when she signed up for Blogger. Google's privacy policy states that it will reveal information in response to "legal process or enforceable governmental request," which is exactly what happened here. Once the court granted the discovery order, Google had no choice but to comply. Is Port's attorney really going to argue that Google had a "fiduciary duty" to refuse?

Port's attorney Strazzullo says he is "
ready to take this all the way to the Supreme Court." I doubt he will find much sympathy there.

UPDATE: Once again demonstrating its inability to get basic legal facts right, Techdirt claims that "Liskula Cohen bizarrely sued Google and an anonymous blogger for putting up a blog...." False, as I first explained last January. Cohen sought pre-action discovery under CPLR § 3102(c), seeking information from Google, but has not sued Google, Port, or anyone else. UPDATE II: Now the author of the Techdirt post says I'm "being nitpicky" because I've "got some weird obsession with trying to make us look bad..." Actually, Techdirt does quite an excellent job at making itself "look bad" when it comes to reporting on legal matters. The lede of the post on Cohen contained two errors: 1) that Cohen "sued Google"; and 2) that Cohen " anonymous blogger." And rather than correct its errors, it attacks me personally. And its effort to defend itself contains further errors. Techdirt says "for all intents and purposes, [Google] was" sued. Wrong. Google was merely the subject of third-party discovery; it was not remotely "sued." And Techdirt writes, "Cohen went to court, forced Google into court, forced Google to defend itself and a judge ruled against Google and in favor of Cohen." False. As I explained, Google did not "defend itself"; it submitted " substantive opposition" (p. 1) to Cohen's application. And the judge did not "rule[] against Google"; it ruled against Port. Why anyone would rely on Techdirt for accurate reporting on legal issues is beyond me. UPDATE III: Goaded by its own commenters, Techdirt finally corrected its error. But it still insists, "In common parlance, the company was sued, which is why pretty much every reporter wrote it up that way." Actually, the real reason some (but certainly not all) reporters made that error is because they're sloppy and don't take the time to make sure they get basic legal concepts right. UPDATE IV: It only gets better. Techdirt is now back to insisting, "She sued." Then why did it correct its post? And citing erroneous newspaper reports for that falsehood does not exactly help its cause.


  1. Google isn't liable to Port, in any way, for complying with a judge's order. As it is Port has suffered irreparable harm by the disclosure of her name when she thought she was blogging anonymously.

    Again like the recording company cases, the processs is wrong - in these instances, the court should order the results of the subpoena be placed under seal before the case proceeds. Defendant could then defend anonymously, if they so choose, before the case is proven. It would also prevent these pre-trial fishing expeditions that Thomas-Rasset and Tenenbaum had to endure, with plaintiffs deposing their families and friends. One only needs to look at the Amurao cases to see the time and resources of plaintiffs wasted by these futile investigations. Finally if the case is proven the veil of privacy should then be permitted to be pierced and the seal on the identifying subpoena lifted.

  2. I fail to see how Port has suffered any cognizable "harm" here. The court found that some of her statements on the blog were "reasonably susceptible to a defamatory connotation." As such, they are unprotected by the First Amendment, and she has no "right" to utter them, anonymously or otherwise.

    And using the Thomas-Rasset and Tenenbaum cases as examples of improper "fishing expeditions" is rich. Discovery produced overwhelming evidence of their liability for copyright infringement. Those cases are excellent examples of the discovery process working as intended.

  3. Hmmm.. A "cross between a bulldog and Chihuahua' BY NY POST WRITER ANDREA PEYSER."

    Reminds me of the time honoured Joke of what do you get when you cross a Bulldog with a Shitzu?

    Lots of Bullsh**t

    hmmm ...I wonder....

    Regarding Techdirt v. Yourself lately.. Gawd.. the term facepalm comes to mind, and when reporting on Legal matter every reporter has a duty to get it correct if for no other reason than to Cover thyne own Posterior.

  4. It's interesting to compare this with the Nightjack case. It seems that "on the Internet, nobody knows you're a dog" is becoming less true with each passing month.

  5. Ben

    There's no more need to discuss the issue of whether Google was sued. Mike is absolutely wrong, and the Techdirt post created a false impression that Cohen would have tried to hold Google liable for defamation, when there was no indication that she intended to sue Google. Mike is right that many news outlets got this wrong when it was originally reported. A suit against Google, as I am sure you and Mike would agree, would be barred by Section 230.

    I think even a "low-powered" attorney could conclude that Port's proposed lawsuit against Google for following court orders is meritless. When the attorney said that he is willing to take it all the way to the Supreme Court, perhaps he meant New York Supreme Court, New York County.

    It's only an interesting question if Google released the name without any court order. What do you think?

    Mark Jaffe

  6. @Mark Jaffe:

    I think it probably would have been a violation of Google's privacy policy (linked to in the post) had they released Port's info absent a court order. But it's a very interesting question whether she could successfully sue. After all, her "damages" would flow from the fact that she had been exposed for allegedly committing an act (defaming Cohen) that is tortious, and unprotected by the First Amendment.

  7. This Port woman seems like a real piece of work.

  8. My chances of finding a Tyranosaurus and capturing him with a butterfly net are geater than Port's chance of winning a lawsuit against Google.

    The Daily News article cited Port's lawyer, Salvatore Strazzullo, as saying, "Our Founding Fathers wrote the 'Federalist Papers' under pseudonyms. Inherent in the First Amendment is the right to speak anonymously. Shouldn't that right extend to the new public square of the internet?"

    While I'm sympathetic with that point of view, and while I think the Court made the wrong call in this case, the right to speak anonymously is not absolute. And to even THINK of suing Google for obeying a court order is crazy talk.

    I notice according to Strazzullo's bio that he has given seminars on "Real Estate, Criminal Law and Elder Planning", but there is no mention of any expertise in Internet Law, Defamation Law, or First Amendment Law. Call me crazy, but before suing Google I'd want a lawyer with some REAL expertise in these areas on my side.

  9. "Our Founding Fathers wrote the 'Federalist Papers' under pseudonyms. Inherent in the First Amendment is the right to speak anonymously. Shouldn't that right extend to the new public square of the internet?"

    Having read the Federalist Papers, I don't recall Publius defaming as 'skanks and hos' those who disagreed with adoption of the Constitution.

  10. The real shocker in this story is that once again we see an example of the vicious misogynism so prevalent online behind the curtain of anonymnity and "privacy" jump the gene pool and land squirming on the desk.


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