Someone, somewhere did not like Liskula Cohen, a model in her 30s who lives in New York. A blog was launched from Google’s Blogger platform, apparently devoted to maligning her, complete with uncomplimentary photos. To be sure, such online attacks are hardly rare; indeed, Cohen’s story diverges from most such incidents because she fought back — and it appears she has been, to some degree, successful.
Cohen complained to Google, according to media accounts, and requested the name of the poster. Google initially refused but was then ordered by a judge to hand over the name. Cohen reportedly knows this woman, albeit distantly. Now, the ball is in her court. She can sue for defamation — and probably lose, at least according to attorneys contacted for this article. She could also publicly name the blogger, who could find herself on the receiving end of the blogosphere’s wrath.
Naked on the Web
Whatever Cohen decides to do, this event — as is usually the case with legal disputes spawned by the Internet — has upended a bit of conventional wisdom of what can and cannot be done online: Namely, no matter what you do to cover your tracks, there is perhaps no such thing as anonymity on the Web.
For that reason alone, people should be very careful about what they say online, Mike Weinsten, an entertainment attorney at the firm Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, told TechNewsWorld. “The fact that anything can be blasted across the world makes the potential damages for defamation that much greater,” he said.
What this incident didn’t do is suddenly chip away at protections in the First Amendment — which does not provide cover for defamation, but does give wide latitude to what defamation actually is.
On the blog, Cohen’s antagonist reportedly called her a “skank” — and worse. Such comments, no matter how juvenile and tasteless, are not considered defamation, Weinsten explained.
“These sort of hyperbolic statements — general name-calling, negative opinions based on non-defamatory facts — that is protected under the First Amendment,” he said. “Now, if the blogger had said she had a child out of wedlock, that could be considered defamatory because it is a statement of fact.”
It is also possible, Weinsten said, that the blogger could be held accountable for calling Cohen a “whore,” as she reportedly did. “Depending on the context, that can be considered a statement of fact.”
Another myth debunked by the Cohen case: Online service providers will hang tough for the privacy of their customers. True, many service providers are protected by the Communications Decency Act for defamatory speech that might happen on their platforms. However, they and other online service providers are still subject to court orders and government pressure.
People can and will sue to get this information, Jeffrey Spitz, attorney for Greenberg Glusker, told TechNewsWorld.
“It is not out of the ordinary when issues arise that are potentially actionable for a person who has been arguably damaged to get the identity of the blogger,” he said.
Cohen argued that the name-calling had damaged her ability to find modeling work. This argument could work for anyone, Spitz said. “Defamation is damage to reputation. Even if you are not a model, depending on the nasty names being used, if they cross the line between opinion and fact, then you can make an argument that you have a prima facie claim and be able to get that information.”
One fact not highlighted in this episode is Cohen’s status as a public person. Generally speaking, it is much harder to prove defamation when you are a public official, public figure or limited-purpose public figure, Matthew Albaugh, an attorney with Baker & Daniels, told TechNewsWorld.
Such plaintiffs “must establish that the defendant acted with actual malice with clear and convincing evidence. If the plaintiff is a private person, the plaintiff generally must only show that the defendant acted negligently. If the private person wants to recover punitive damages, he or she must show evidence of actual malice,” he said.
In this case, Albaugh said, it is quite likely that Cohen would be deemed a public figure, or at a minimum a limited-purpose public figure. “As such, she’d need to demonstrate that the blogger acted with actual malice in making the crude statements about her,” he said.