Monday, April 18, 2011

Defamation and the Internet, can they coexist?

The internet has completely changed the face of human interaction. It has given people from all over the world the ability to engage in unrestricted dialogue on just about any subject matter of their choice. All this sounds very clean cut, informative and revolutionary. It can indeed be all those things but sometimes freedom of speech on the web can go in different direction. In some cases, speech that is published on the internet is done by an anonymous person. Today almost everyone has a blog or at least reads one but what happens when an anonymous blogger makes defamatory statements about a public figure? Can that public figure force the website operator to reveal the identity of the anonymous blogger? And the answer is yes, according to the Nissenbaum Law Group, “under certain circumstances people who defame others anonymously on the Internet may lose their anonymity.”

In Talley v. California, 362 U.S.Supreme Court 60 (1960) , Talley was charged with violating an ordinance that was passed in Los Angeles in 1935. The ordinance stated that citizens were forbidden to distribute any handbill that did not have the printed name and address of the person who prepared, distributed or sponsored it. Talley handed out handbills that read: "National Consumers Mobilization, Box 6533, Los. Angeles 55 Calif. Pleasant 9-1576." The handbills urged citizens to participate in a boycott of businesses that carried products of “manufacturers who will not offer equal employment opportunities to Negroes, Mexicans and Orientals.” A municipal court stated that the handbills did not contain enough identifying information to satisfy the ordinance and Talley was fined $10. A California Appeals Court affirmed the decision. Talley choose not to pay the $10 and appealed to the Supreme Court of California. He received six votes from the Supreme Court and 3 against him. Talley won his case.

In the of case, Doe v. Cahill, 884 A. 2d 451 - Del: Supreme Court (2005), Patrick Cahill was a City Councilman in Smyrna, Delaware. Cahill and his wife Julia filed a lawsuit against four John Doe’s for making defamatory statements about him on an internet blog. The doe used the alias “Proud Citizen.” Two statements were made on an internet website sponsored by the Delaware State News called the “Smyrna/Clayton Issues Blog.” The statements criticized Cahill’s ability to make constructive decisions for the community he served and the “Proud Citizen” went on to call Cahill paranoid. The anonymous blogger said that Cahill was suffering from “mental deterioration” and that he had failed as a leader. Cahill went to the court seeking to prove that he was defamed by the anonymous blogger and to find out the identity of the blogger. A Superior Court Judge applied a good faith law standard and ordered that the third Party, the website operator, reveal Doe’s identity. With this Cahill learned that Comcast owned the Doe’s IP address. Cahill acquired the court order that required that Comcast disclose the identities of the Doe.

In response to Cahill’s court order, Doe sought out to get an emergency protective order to prevent Comcast from turning over his identity. The trial court quickly denied Doe’s request for a protective order, and stood by Cahill's request for a court order to obtain Doe’s identity from Comcast. Doe filed an appeal to the Delaware Supreme Court and it was granted on June 28, 2005. The Delaware Supreme Court disagreed with the good faith standard. The judge stated that the plaintiff must first “present evidence creating a genuine issue of material fact for each element of the defamation claim.” The case basically came down to “one person’s right to speak anonymously against another person’s right to protect his reputation.” People are allowed to state their opinions on blogs and chat rooms and it is difficult to win a case of defamation involving these venues. The First Amendment protects speech on the internet and the right to speak anonymously but it doesn’t protect defamatory speech. Cahill was unable to prove that he was defamed by the anonymous blogger’s opinion. The case was dismissed on October 5, 2005.

In the article, "Why a New York Court Unmasked the Blogger Who Wrote Harshly About a Model," in 2009 a New York court decided that model, Liskula Cohen, had the right to know the identity of the anonymous blogger who was defaming her on the internet. Cohen was written about on a blog titled “Skanks in NYC.” The court asked Cohen to prove that “strong showing that a cause of action exists, and that the cause of action is meritorious before the anonymous defendant will be unmasked.” Cohen lawyer managed to prove all of the above based on the fact that calling someone a “skank” or a “ho” makes the person appear promiscuous which is a defamatory statement. As a model, Cohen, cleanliness and hygiene are a vital point in the job requirements and having those factors being questionable was damaging to her career. The court sided in her favor.

Sources:, Court Orders That the Identities of Anonymous Internet Posters be Disclosed, Why a New York Court Unmasked the Blogger Who Wrote Harshly About a Model by Julie Hilden. 2009.


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