This post has been modified to reflect new information since its original publication.
The “Skankiest in NYC.”
A “psychotic, lying, whoring … skank.”
“Desperation seeps from her soul, if she even has one.”
– Rosemary Port’s comments about Liskula Cohen
Insults and abuse are rampant on the Internet. But, do you know your rights if someone calls you horrible names online? Can you make Google divulge your detractor’s real identity so you can sue him or her for defamation? Does Google have an obligation to protect your privacy?
The 2009 Liskula Cohen versus Google “skank” decision answered these questions when it forced Google to reveal the identity of a blogger who allegedly defamed model Liskula Cohen on a Blogspot.com site titled “Skanks in New York.” Unfortunately, there is still a lot of misinformation circulating about the case and what it means for anonymous speech.
This article lists the five biggest myths regarding the case, as well as the truth behind each one.
Myth 1: The case signaled the end of online anonymity
This case in no way ended anonymous online speech.
This single order from a lower-court judge in New York has no legal power over courts outside the state. In fact, the ruling is so limited that appellate courts in New York can still overturn or modify it.
To outlaw anonymous blogging in America, the United States Supreme Court would have to rule on such a case. And there is little reason to believe the justices would rule in favor of exposing citizens’ identities. In fact, the cases about anonymous speech that the U.S. Supreme Court has decided have generally upheld a person’s right to speak anonymously—at least until he or she breaks another law.
Even if the Supreme Court eventually does rule against anonymity, people could still remain anonymous online by using fake emails, proxy servers, and anonymous browsing. Apparently, Rosemary Port entered her real email address when she set up her blog. If she hadn’t done this, we still wouldn’t know her identity.
This case garnered a lot of publicity because of the salacious nature of the charges and the celebrity involved. However, it didn’t set any legal precedent. The nature of the Internet hasn’t changed: If you don’t break any laws, you can still remain anonymous.
Myth 2: Google was liable
Google does not legally owe Liskula Cohen or Rosemary Port anything.
Liskula Cohen did not go after Google for damages. She only included Google as a defendant in her lawsuit to force it to identify the blogger who was defaming her. Once the judge ordered Google to reveal the blogger’s email address, the company had nothing further to do with the case.
In fact, according to Section 230 of the Communications Decency Act of 1996, people can’t hold businesses like Google liable for what users post via these companies’ platforms.
Rosemary Port initially planned to sue Google for $15 million for violating her right to privacy, but she never filed any papers. However, if she had gone through with the suit, she most likely would have lost.
Google defended her identity in court and tried its best to keep her anonymous. But it was forced to release her name in the end. There was nothing more Google could have done at that point; the company couldn’t ignore a court order.
Posting content on the Internet inherently puts your privacy at risk. By signing up for the Blogspot service, Rosemary Port agreed with the company’s Terms of Service, which stated that it might have to disclose her identity if a court ordered it to do so. Because this is what happened, Google is blameless.
Myth 3: The judge trampled on the First Amendment
The First Amendment states that citizens have a right to speak without government censorship. Because Google is a private company, its internal decisions about what kinds of content to publish do not involve the First Amendment in any way.
However, the First Amendment does come into play when the government compels Google to reveal a speaker’s identity. According to the First Amendment, the government can’t forcibly reveal the identities of people who say or write things critical of the government. In contrast, individuals have always been guaranteed the right to find out the identity of a person who they allege is defaming them.
In this case, the judge ruled that Cohen deserved to find out who was attacking her so that she could take that person to court.
(While Cohen did file a $3 million lawsuit for defamation, she later dropped her lawsuit, claiming that “It adds nothing to my life to hurt hers. I wish her happiness.”)
Myth 4: The Supreme Court decided the case
Technically true, but still false
The Supreme Court of Manhattan, not the Supreme Court of the United States, decided the case.
And although its name sounds impressive, the Supreme Court in New York is actually the state’s least important court. To make it even more confusing, each judge on this court is called a “Justice”—the title normally reserved for members of the most important court in the country.
In reality, New York’s Supreme Court is merely a trial court like a Municipal Court or a Superior Court. The state’s most important court is the New York Court of Appeals.
Myth 5: The blogger was guilty of defamation
The case was not about whether or not what Rosemary Port posted on her blog defamed Liskula Cohen. It only ruled that another court might do so. And to allow a defamation case to go forward, Google needed to reveal the blogger’s identity.
This type of lawsuit—in which a judge orders a website or Internet Service Provider (ISP) to reveal the name of someone who has disparaged a person or company—has become more common with the rise of the Internet and social media.
Often, people bring these cases as a prelude to filing a defamation suit (like Liskula Cohen did). But, sometimes people use them as a way of intimidating or harassing their critics. When used to these ends, these cases are called CyberSLAPPs, with “SLAPP” standing for “Strategic Lawsuits Against Public Participation.”
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Due to the tawdry nature of the blogger’s accusations, some people might not give this case the same weight that they’d give to other important legal decisions. However, the robust debate that it has sparked regarding the limits of free speech, the right to privacy, and how to protect your online reputation can’t help but benefit our society as we conduct more and more of our lives online.
Another good thing to come out of this case is that Ms. Cohen has leveraged what she has learned from her experience to advocate for cyberbullying victims. She became a spokesperson for the cause after receiving a letter from the mother of a teenage girl who committed suicide after being cyberbullied.
“We do have the freedom of speech but we don’t have the freedom to defame,” says Cohen. “If the internet is just supposed to be the Wild West, a do-what-you-want, say-what-you-want place and no longer a reliable source of information – which is what I think it was intended for – then I want no part of it.”