Work From Home Online Guide

A recent case in one of the lower courts of the state of New York brought back memories of the “Site Build It Scam” brouhaha back in March that a few of my pals became embroiled in. In the New York incident, a Canadian fashion model, Liskula Cohen, got some negative publicity in August 2008 on an anonymous blog called “Skanks in NYC.” The blog was on Google’s free Blogger platform and only had five entries. All of them were directed at Cohen. (Don’t try Googling “skanks in nyc” to see what was said, because Google has nuked the blog.)

Cohen decided to sue the blogger for defamation and filed suit against Google in January 2009 to make Google release the blogger’s name. In August 2009, Judge Joan Madden of the Manhattan Supreme Court ruled that Google would have to provide the blogger’s name so that Cohen could proceed with her defamation lawsuit. Google complied, and now the whole world knows that Rosemary Port, a 29-year-old student at New York’s Fashion Institute of Technology, is the owner of the now-defunct “Skanks in NYC.”

A few comments on this case from a legal perspective are in order. First of all, the court did not rule that Port actually defamed Cohen; it only ruled that Cohen had a right to file the lawsuit and forced Google to provide the information that would make the suit possible. Of course I wanted to know what Port said (wouldn’t you?) so I headed on over to the ever-reliable
New York Daily News and got the dirt. Port called Cohen a “ho,” a “skank,” a “psychotic lying whore,” and an “old hag.” Port also wrote that Cohen had posted photos on her personal website of herself fully clothed simulating sex with a fully clothed male at a party. The Daily News also said that Port was mad at Cohen for bad-mouthing her to Port’s ex-boyfriend. Ladies, pul-eeeze!

In my opinion, none of this drama amounts to a winnable defamation claim. Port’s smack talk about Cohen doesn’t contain enough facts to be proven or disproven, and there’s even a case from a federal circuit from a few years ago holding that there’s an expectation on the internet that bloggers will engage in exaggeration and hyperbole, and that nobody in their right mind would believe them enough to damage anybody’s reputation. (Yeah, I know you want the cite, but I can’t bill anybody by the hour for writing this blog, so I’m not going to give it to you. So sue me.) The one exception would be the bit about the photos, but there’s already evidence in the case that Cohen had posted some questionable photos on her site. Add to that the fact that Cohen is a frequently-photographed fashion model and therefore probably a public figure, and you get Port as the probable winner in this little catfight. Apparently Cohen realized this too, at about the same time she realized that Port’s little Blogger blog, which probably got 10 visitors a day before Cohen sued Google, had suddenly become a hot news item in Manhattan, where they eat this sort of thing up. Not the kind of fame your career needs if you’re trying to get hired in the Big Apple, so Cohen announced that she was dropping the suit—ostensibly out of the kindness of her heart.

I heard about the lawsuit against Google on Webmaster Radio (hat tip to Justin at seozombie.com for Twittering it), and I want to address all the things that the site got wrong, which are pretty numerous. For one thing, Webmaster Radio got the name of Port’s blog wrong (they called it “Skanks of New York.”) After that, they called the decision “precedent-setting,” and made this grand statement:

The decision removed any lingering comfort bloggers might have in the sense of anonymity on the Internet. As of last week, there is none and bloggers are on notice that they can be held responsible for their writing should it be deemed defamatory or libelous. The decision should also serve to stem the tide of nastiness found throughout much of the blogosphere. It might also have a rebound effect of opening the door to others who feel they too have been unfairly libeled in blog posts.

First of all, a decision from the Manhattan Supreme Court is anything but “precedent-setting.” Although New York’s weird nomenclature for its state court system makes this court sound like the great seat of high jurisprudence, it’s just a basic state circuit court whose decisions are only binding on the parties in that particular case. (It’s remotely possible that a different plaintiff who sued Google in Manhattan again could claim that Google was bound by the Cohen case under the doctrine of collateral estoppel [and no, I'm not going to explain that to you], but it’s not a sure winner.)

To sum things up: the New York court ruled that Cohen could make Google hand over Port’s name so she could sue Port. If a fashion model from Lawrence, Kansas, was the victim of a Blogger blog called “Skanks of Lawrence, Kansas,” and sued Google in the Manhattan circuit to get the owner’s name, Google wouldn’t have to face the wrath of Judge Madden again. They’d simply say, “What, exactly, does this have to do with Manhattan?” and file a motion to remove the case to Kansas, where it belongs.

More important, there have been several other cases dealing with this very same issue. Some have held that anonymous bloggers are protected under the first amendment, while others have held, as Madden did, that they’re not entitled to anonymity if they defame someone. Many of these cases are in the federal circuits, which actually are “precedent-setting,” at least in a fairly large geographical area if the case gets filed in federal court. The law here is very much in a state of flux, and most people I know who blog are well aware that the hosting companies will out you in a heartbeat if somebody has their lawyer write a nastygram on letterhead. If somebody is thin-skinned (or you infringe on their copyright or trademark), there’s no need to file a lawsuit in order to get your name. In other words, the better informed among us don’t expect privacy, but we speak out anyway.

Port, apparently, isn’t one of the better informed. She’s filed a lawsuit against Google for “breaching its fiduciary duty” to protect her anonymity while she was using Blogger. Now, I’ve put up a lot of Blogger blogs, and I never saw anything in the little “I agree” scroll screen where Google agreed to protect my anonymity, let alone any implication of a fiduciary duty. WTF??? Which brings me back to the Site Build It Scam incident. A couple of months ago, Ken Evoy was blathering in the forums that he and his company had an “actionable claim” against the perps. LOL. An actionable claim means your attorney knows he can file the lawsuit without the court sanctioning him for bringing a frivolous claim. In no way does it mean you’re going to win—it means your lawyer knows he can bill you for upwards of $50,000 while you pay for discovery without incurring the wrath of the court. And as Cohen quickly found out, defamation might not wreck your reputation, but filing a defamation lawsuit almost certainly will. Or ask Brian Clark what happened to him with Lissie’s review of Scribe SEO.