worth reading -- Canadian model gets Google to reveal blogger's identity

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Paul Levy" <plevy () citizen org>
Date: August 20, 2009 12:49:23 PM EDT
To: "David Farber" <dave () farber net>, "ip" <ip () v2 listbox com>
Subject: Re: [IP] Canadian model gets Google to reveal blogger's  
identity

This story is based on the winning lawyer's overstatement of the
significance of his decision.  According to the decision, New York law
requires the same thing that most courts have said is required under the
First Amendment -- notice to the Doe and a showing of a meritorious
claim, including not only a legally valid claim but "evidentiary facts"
supporting those claims.  In this case, it appears that the legal debate
was not over whether Ms. Cohen was, literally, a "ho" or "skank" -- the
affidavit from Ms. Cohen that submitted in support of the subpoena to
Google averred that she was not, and the Doe defendant did not make an
issue of whether there was an adequate showing of falsity with respect
to those matters -- but whether the blogger's posting of pictures,
apparently taken in part from Cohen's own web pages, and then commenting
using such words as "ho" and "skank", represented actionable statements
of fact or nonactionable expressions of opinion.

The consensus standard does not mean, and should not mean, that the Doe
always wins.
I think one can fairly differ about whether the New York trial judge
correctly applied the New York decisions construing the law under the
First Amendment (and New York’s own constitution) that differentiate
opinion from fact.  Presumably, that is one of the matters that the
Doe's lawyers are going to be considering as they decide whether or not
to take an appeal.  But the decision is not generally at odds with the
prevailing view in all states (including New York, in such cases as
Greenbaum v Google) that a would be plaintiff like Ms. Cohen has to
ensure notice to the Doe and make a leghal and factual showing of a
tenable claim.

It is a bit disturbing that Ms. Cohen is quoted publicly suggesting
that she may not really care  to go after the blogger who posted this
nasty stuff, while her lawyers is quoted as saying he intends to pursue
a defamation suit.  Is this case only the product of her lawyer's desire
to litigate?  One of the things that we worry about in trying to craft a
sufficiently balanced standard is the abuse of subpoenas for the mere
purpose of unmasking, rather than to pursue a genuine defamation claim.
In light of the quotations in this article, perhaps it remains to be
seen what this proceeding was really about.

Readers can judge all this for themselves by reading the New York
court's decision, Ms. Cohen's complaint and supporting affidavits, and
the Doe's brief, which can all be found on the Cyberslapp web site at
http://www.cyberslapp.org/cases/page.cfm?PageID=92

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation

> > > David Farber <dave () farber net> 8/20/2009 12:21 PM >>>


Begin forwarded message:

From: michael.slavitch () gmail com
Date: August 20, 2009 11:16:27 AM EDT
To: "David Farber" <dave () farber net>
Subject: Canadian model gets Google to reveal blogger's identity
Reply-To: michael.slavitch () gmail com

For IP: Anonymity isn't what people think it is.


http://m.theglobeandmail.com/news/technology/canadian-model-gets-google-tounmaskanastyblogger/article1257768/?service=mobile


Michael Slavitch




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