> Liskula Cohen, Solers, defamation, and possible Section 230 issues

EricBarbour

Read up on the Liskula Cohen lawsuit. She sued to find out who ran an anonymous Blogger blog that badmouthed her (now gone, and not backed up on Wayback....I remember seeing it months ago, it was rather tame and stupid compared to the crap on some Wikipedia BLPs).

QUOTE

On Monday, New York Supreme Court Judge Joan Madden ruled that Google must hand over to Cohen any identifying information it possesses about the blog's creator.
Steven Wagner, Cohen's attorney, said Google complied with the ruling Tuesday evening, submitting to his legal team the creator's IP address and e-mail address. Only a valid e-mail address is required to register for a blog on Blogger.com.

Google rolled over immediately upon receipt of the judge's order, interestingly enough.
They could have easily used Section 230 to avoid giving this information out, but didn't.

I'm wondering if this case could possibly be used as a precedent in legal action against Wikipedia editors who use WP to defame someone.

As it turned out, the blogger was someone Ms. Cohen knew from NYC clubs. All Cohen wants is an apology....

Somewhat related is the Solers case, involving an anonymous tip to the SIIA, claiming that Solers (a military software contractor) was using pirated software.

QUOTE

The precedents that have been set so far have been a bit mixed. In cases involving defamation, a Virginia court has determined that plaintiffs need only to show that they have a "good faith basis" for their accusations in order to have an otherwise anonymous defendant named. In contrast, New Jersey courts have decided that each claim against a defendant has to be supported by evidence. The latest to weigh in is the District of Columbia's Court of Appeals, which is tackling a case in which a John Doe defendant lodged anonymous accusations of software piracy against a company, which has sued him for defamation. The DC court ruled that the case may proceed, and provided guidelines that the trial judge should use in order to determine whether the defendant should be unmasked.

Newyorkbrad

QUOTE(EricBarbour @ Wed 19th August 2009, 5:34pm)

Google rolled over immediately upon receipt of the judge's order, interestingly enough.
They could have easily used Section 230 to avoid giving this information out, but didn't.

Section 230 provides that in the United States, a computer service provider may not be held liable for material posted by someone else. It does not protect the individual who actually posted the information, and therefore does not provide a defense to a subpoena seeking information that could identify the person who made a post.

I haven't seen Justice Madden's decision yet, but typically, courts address these types of requests by balancing the value of protecting anonymous speech, on the one hand, against a plaintiff's interest in redressing defamation, on the other. In general terms, the court will direct the host (Google or whoever) to turn over the IP information if but only if it believes it's likely that the plaintiff may have a meritorious claim against the poster.

The irony of a case like this one is that, especially in the Internet age, the publicity generated by the defamation litigation itself may be far in excess of that created by the original harassing or defamatory posting. I discussed some situations somewhat like this in my talk at the New York Wikiconference, the video of which I hope will be posted sometime soon.

Guido den Broeder

QUOTE(EricBarbour @ Wed 19th August 2009, 11:34pm)

I'm wondering if this case could possibly be used as a precedent in legal action against Wikipedia editors who use WP to defame someone.

It's not a precedent, these things happen all the time. Wikipedia would have to comply, too, and has on several occasions that I know of.

QUOTE(Newyorkbrad @ Thu 20th August 2009, 12:29am)

The irony of a case like this one is that, especially in the Internet age, the publicity generated by the defamation litigation itself may be far in excess of that created by the original harassing or defamatory posting. I discussed some situations somewhat like this in my talk at the New York Wikiconference, the video of which I hope will be posted sometime soon.

Yes, and the defamers count on their victims being aware of this. Therefore, the foundation and the various projects should do much more to prevent and remedy defamation, IMHO. Currently, users can get away with pretty much anything.

GlassBeadGame

QUOTE(Newyorkbrad @ Wed 19th August 2009, 4:29pm)

QUOTE(EricBarbour @ Wed 19th August 2009, 5:34pm)

Google rolled over immediately upon receipt of the judge's order, interestingly enough.
They could have easily used Section 230 to avoid giving this information out, but didn't.

Section 230 provides that in the United States, a computer service provider may not be held liable for material posted by someone else. It does not protect the individual who actually posted the information, and therefore does not provide a defense to a subpoena seeking information that could identify the person who made a post.

I haven't seen Justice Madden's decision yet, but typically, courts address these types of requests by balancing the value of protecting anonymous speech, on the one hand, against a plaintiff's interest in redressing defamation, on the other. In general terms, the court will direct the host (Google or whoever) to turn over the IP information if but only if it believes it's likely that the plaintiff may have a meritorious claim against the poster.

The irony of a case like this one is that, especially in the Internet age, the publicity generated by the defamation litigation itself may be far in excess of that created by the original harassing or defamatory posting. I discussed some situations somewhat like this in my talk at the New York Wikiconference, the video of which I hope will be posted sometime soon.

The case is discussed in this article and it elaborates on the hurdles a plaintiff must clear in order to get an ISP or website to be required to provide identifying information about a anonymous speaker:

QUOTE(Solers v Doe, DC Ct of Appeals @ Aug 13, 2009, not yet published)

1. ensure that the plaintiff has adequately pleaded the elements of a defamation claim;
2. require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served;
3. delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash;
4. require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control; and
5. determine that the information sought is important to enable the plaintiff to proceed with his/her lawsuit.

EricBarbour

QUOTE(GlassBeadGame @ Wed 19th August 2009, 6:26pm)

QUOTE(Solers v Doe, DC Ct of Appeals @ Aug 13, 2009, not yet published)

1. ensure that the plaintiff has adequately pleaded the elements of a defamation claim;
2. require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served;
3. delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash;
4. require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control; and
5. determine that the information sought is important to enable the plaintiff to proceed with his/her lawsuit.

That's a fairly rigid standard to meet for a successful suit--but not much different from the
standard pretrial due diligence for any civil case. Anyone with a serious claim would do that.

It's a lot more likely to succeed then when you have people going "Oops, Section 230,
forget it, go home" and thus shutting it down completely. Why no one has brought
a case against WP yet (that we know of) is a mystery.

Perhaps that WP:NLT business is a red herring, and people DO successfully threaten them.

Do they pay the Jeff Merkeys to go away? and force them to sign an agreement to keep quiet, or lose the $$?

Newyorkbrad

QUOTE(EricBarbour @ Thu 20th August 2009, 4:24am)

QUOTE(GlassBeadGame @ Wed 19th August 2009, 6:26pm)

QUOTE(Solers v Doe, DC Ct of Appeals @ Aug 13, 2009, not yet published)

1. ensure that the plaintiff has adequately pleaded the elements of a defamation claim;
2. require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served;
3. delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash;
4. require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control; and
5. determine that the information sought is important to enable the plaintiff to proceed with his/her lawsuit.

That's a fairly rigid standard to meet for a successful suit--but not much different from the
standard pretrial due diligence for any civil case. Anyone with a serious claim would do that.

It's a lot more likely to succeed then when you have people going "Oops, Section 230,
forget it, go home" and thus shutting it down completely. Why no one has brought
a case against WP yet (that we know of) is a mystery.

Perhaps that WP:NLT business is a red herring, and people DO successfully threaten them.

Do they pay the Jeff Merkeys to go away? and force them to sign an agreement to keep quiet, or lose the $$?

As has been discussed on WR, Barbara Bauer did sue the Wikimedia Foundation for allegedly defamatory content in her article. The case was dismissed as against the Foundation on Section 230 grounds (I'm not sure where it stands as against the other defendants). Long-time Wikipedia legal-threat aficionadoes were bemused that this case was actually brought in A COURT OF LAW IN NEW JERSEY, although not, alas, in Trenton.

EricBarbour

QUOTE(Newyorkbrad @ Thu 20th August 2009, 8:55am)

As has been discussed on WR, Barbara Bauer did sue the Wikimedia Foundation for allegedly defamatory content in her article. The case was dismissed as against the Foundation on Section 230 grounds (I'm not sure where it stands as against the other defendants). Long-time Wikipedia legal-threat aficionadoes were bemused that this case was actually brought in A COURT OF LAW IN NEW JERSEY, although not, alas, in Trenton.

Thanks Brad, I had forgotten about Bauer. Tthere were already a lot of criticisms about her posted online, so her case was questionable.

So, in the one case we know of, Sec 230 was successfully invoked, but only to keep WP from being a party to defamation. I don't seen any mention of Bauer trying to find out the identity of the original poster. As usual, everything in WP has been "blanked as a courtesy"--and the revenge page was already in place.

(And oh yeah, Brother Brandt saved the article and talk pages. Someday an attorney will give him a big wet kiss.)

Perhaps a different judge might do this differently. A case that really tests WP's anonymity culture still has yet to appear. (As far as we know.)

What did we learn? Not much, but Jeff Coursey has a few choice comments. It would be most amusing to lock him and Mike Godwin in a room, and see if they kill each other.