Judges Wants Anonymous Blogger Outted

[Partha]

Partha,
I don't know how you are making such an absolute statement that she can't prove damage. As I said the other day, you can't possibly know that. This might be a board first and last, but I actually agree with Kulaf.

Can you show harm? The burden of proof of harm is on her.

[Partha]

I'll also note that if she filed it in New York, she's going to have a hard time of it. This is the most relevant case to this thread in New York law.

http://www.citmedialaw.org/legal-guide/ ... h-new-york

Greenbaum v. Google, 845 N.Y.S. 2d 695 (N.Y. Sup. Ct. 2007)

The blog "Orthomom" is operated anonymously. Comments critical of Pamela Greenbaum, a local school board member, appeared on the blog in January 2007. Greenbaum objected to both primary blog content and a user comment. In February 2007, Greenbaum filed a motion for "pre-commencement discovery" in New York state court, seeking to compel Google to disclose identifying information about the operator of the blog and a user. (Google owns Blogger, which is the blog hosting service for the Orthomom blog.) After being notified of Greenbaum's discovery request, Orthomom intervened and objected to disclosure of her identity, invoking First Amendment protection for anonymous speech.

In October 2007, the court denied Greenbaum's request for pre-commencement discovery and dismissed the lawsuit. In its order, the court recognized that the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and that courts must balance this right with the plaintiff's right to pursue a valid cause of action for defamation. The court expressed a willingness to follow the standard set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), in which a New Jersey appellate court held that a plaintiff must produce evidence on each element of its claim and that the court must independently balance the need for disclosure against the First Amendment values at stake. The Greenbaum court indicated that it was not necessary to decide the precise standard to be applied, however, because "the statements on which [Greenbaum] seeks to base her defamation claim [were] plainly inactionable as a matter of law."

Thus, Greenbaum provides some support for applying the Dendrite test in New York, but it is not conclusive.

Mark it: it gets appealed and the state court throws it out.

[Lurker]

I can't show harm any more than you can show there was no harm since there's been no evidence presented in a trial yet. That was my point.

=====

The Greenbaum case isn't relevant. The Judge ruled against pre-commencement discovery because the statements on the blog were opinions and not actionable for defamation. That wasn't the finding in the Cohen case. Sure, you could argue that the judge got it wrong and both bloggers were just giving opinions, but reading the statements from both cases you can see a clear difference between the two.

[Partha]

Oddly enough, you cannot find the motion listed at the New York Appellate Court website. Judge Madden has 4 slips for the month of August, none of which involve this case.

The Greenbaum case is quite relevant, also. It sets a higher bar for discovery of the name of the blogger than this decision.

I can't show harm any more than you can show there was no harm since there's been no evidence presented in a trial yet. That was my point.

She has to prove harm to the judge under the higher standard. I can't see how she did it.

[Partha]

Also, link to the search engine:

http://iapps.courts.state.ny.us/lawReporting/Search

[Lurker]

The Greenbaum case is quite relevant, also. It sets a higher bar for discovery of the name of the blogger than this decision.

No, it didn't set a higher bar. The one judge ruled that the blogger was stating opinion, which is protected speech. The other judge ruled that the blogger was making statements of fact, which if false would be cause for a defamation suit.

[Ddrak]

Greenbaum is relevant. It simply says that there must be something actionable prior to the discovery process, which would remove anonymity. In this case the judge appears to believe there is something actionable, so discovery may proceed. Proof of harm comes at a trial, so really the judge just has to decide whether the blogger was making statements of fact or opinion.

In any case, anonymous sniping at people is a coward's game. If you don't have the balls to put your name behind your statements then perhaps you shouldn't be making them (in general - there's obvious exceptions).

Dd

[Partha]

Greenbaum is relevant. It simply says that there must be something actionable prior to the discovery process, which would remove anonymity. In this case the judge appears to believe there is something actionable, so discovery may proceed. Proof of harm comes at a trial, so really the judge just has to decide whether the blogger was making statements of fact or opinion.

I'll only say that we don't know what the judge finds actionable about it, because the motion and their opinion are not available. Regardless, I think the blogger has a very good case to take to the Appellate Court and get this ruling overturned.

In any case, anonymous sniping at people is a coward's game. If you don't have the balls to put your name behind your statements then perhaps you shouldn't be making them (in general - there's obvious exceptions).

So, when's the board closing?

[Lurker]

The Supreme Court of NY ruling for the Cohen case is available. Read it here (pdf warning).

[Partha]

I love how the petition declares that some of the pictures aren't even of her.

And seriously. It's 2009. Who the hell needs a PDF warning?

[Ddrak]

In any case, anonymous sniping at people is a coward's game. If you don't have the balls to put your name behind your statements then perhaps you shouldn't be making them (in general - there's obvious exceptions).

So, when's the board closing?

Yeah, the obvious exceptions are anonymous sniping at anonymous people and sniping at politicians. After all, to quote the rules that I put in place when I took over:

I believe in personal privacy and there's nothing personal or private about an internet board.

Dd

[Rexxfield.com]

"by Jarochai Alabaster » Thu Aug 20, 2009 2:11 am
Oh look. A win for frivolous nonsene"

Jarochai, at face value your observation may make sense to many people. However, I would submit that your position and that of those who agree with you is influenced by the probability that you have never been at the receiving end of a malicious and relentless Internet smear campaign. People that depend on their reputation to make a living can be utterly destroyed by such a thing. Because the accessibility and global availability of blogging technologies for both author and reader is a relatively recent innovation, much has yet to be done to bring community awareness and legal systems into line with the reality of the situation.

I like to use an simple analogy to help "future victims" of anonymous bloggers and their smear campaigns as follows. Imagine if you will a farmer who has had his livestock destroyed and equipment and barns burned by a vandal. His livelihood has been lost as utterly as that of a white collar professional who has been subjected to an effective and vicious Internet libel campaign.

Respectfully submitted, Michael Roberts. Internet libel victim's advocate
www.Rexxfield.com

[Select]

^ I'm afraid to click the link. Some brave soul let me know if it's legit. If it is, wow. This board is becomming popular in subject searches. First Mr. Active 101 and now Rexxfield. I'm impressed. Dd, you could be making some nice profits with a few ads for the masses. Of course, us loyal ranters wouldn't see them.

[Partha]

Imagine if you will a farmer who has had his livestock destroyed and equipment and barns burned by a vandal. His livelihood has been lost as utterly as that of a white collar professional who has been subjected to an effective and vicious Internet libel campaign.

Erm, hyperbole for the win? Can anyone seriously name 'an effective and vicious Internet libel campaign' that truly destroyed the moneymaking ability of a public figure?

[Partha]

^ I'm afraid to click the link. Some brave soul let me know if it's legit.

Mr. Roberts is, indeed, legitimate. He also claims to be the victim of just such a smear attack as I asked about, although details are sketchy without further detail to Google or access to Lexis-Nexis. I'm still not certain you can really compare his ordeal as a private figure to that of a model who is without doubt a public figure.

EDIT - I see now, but I won't be posting it here. I retract my previous statements about hyperbole. Wow.

[Select]

EDIT - I see now, but I won't be posting it here. I retract my previous statements about hyperbole. Wow.

lol, schooled...?

[Partha]

Not so much 'schooled' as it is 'that case is fucked up'.

[Ddrak]

I've yet to see a good reason to change the law over things that occur on the internet. There may be a valid case for better education of judges and prosecutors but there's no fundamental difference (legally speaking) between someone posting anonymously on a blog and someone posting anonymous notes all over the place.

Dd

[Select]

posting anonymously on a blog and someone posting anonymous notes all over the place.

Access maybe?

[Ddrak]

Just to add, I think Rexxfield et. al. is incorrect in their criticism of the ISP immunity clause in the CDA. Without that clause it would be commercial suicide to run an ISP from the insane legal risk you carry opening yourself up to lawsuits for the actions of the general public. The internet would become solely the playground of corporations and ISPs would necessarily have to censor everything, which means permit nothing at all in order to provide a cost effective service.

Making ISPs liable for the end user's conduct would be like making paper mills liable for what the newspapers print on their paper. It's flat out stupid. While I'm sympathetic to the plight of those who suffer from anonymous libel, destroying the internet isn't the solution.

Access maybe?

What does that have to do with requiring new laws?

Dd