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Thursday, August 20, 2009

Outing anonymous commenters—
beginning of the end?











While I hang with some real mad men today, I give you that apocalyptical blogging statement to ponder. Maybe you heard about it, maybe you didn’t, but I’ve been following the case of Liskula Cohen, the super model turned offended super model ever since her story back when I first blogged it in January.

Basically, someone went on a blog and said libelous things about said super model under the cloak of–seeing George Parker later today and this description fits—anonymous coward fuctardness.

No big deal and it’s a free world, right?

Except that it’s not. She claimed her rep was damaged, which caused harm to her career, so she sued to find out who the commenter was. Good luck with that.

Except that she won, and now, the blogger has to release the identity of the commenter.

Unless there’s an appeal, I think this could end up being one of the biggest changes in the blogosphere from this point forward. Forget Facebook. Forget Twitter. This affects all sites where comments play a part.

It’s the moment the Terminator came back to try and kill Sarah Connor—but succeeded.

How Perez Hilton, TMZ and the rest of the bloggarazzi survive after this remains to be seen, but I think it’ll force major changes. Before I get into some of the legal ramifications—I asked a lawyer to share his thoughts below—I threw together a list of some of issues this raises:

1) Makes bloggers gun-shy. They’ll think twice about allowing anonymous comments, if they allow any at all. If you think that it’s impossible to track all the negative comments in the blogosphere, two words: Napster. It’s almost impossible to NOT track them.

2) Baby out with the.... Anyone can comment here, anonymous or otherwise. Unless it’s blatant spam, I don’t censor or delete anything. I also post as myself on other blogs, a decision I came to when I first started blogging. Some people don’t. But, that’s their call.

Thing is, I’ve found that some of the best comments come from anonymous commenters. Does this mean I now have to get rid of them too?

While it may seem hypocritical to give cred to postive anon remarks while hating on negative ones, eh, it’s not. Negative crit in and of itself serves a purpose too, and while I may not like them, I don’t automatically hate them, especially on ad blogs where giving your opinion goes to the nature of what we do.

The stuff I think people could agree goes too far is, well, the stuff that goes too far or is patently false.

3) Everyone’s a target now? Regardless of the comment, you’ll have companies with deep pockets sending out their legal SWAT teams to scan blogs for anything that could be remotely actionable, especially because they have precedent now.

Think of all the agencies who have taken crap from ad blogs, and all the hate directed at creatives by commenters on those blogs. Because we recycle in advertising...

How AdScam, AgencySpy and the rest of the ad bloggarazzi survive after this remains to be seen, but I think it’ll force major changes the first time a lawyer sends an email to one of them. Imagine if this case had happened a few years ago. How about the suit some attorney would try and bring against all the commenters who had something negative to say about the events leading up to the tragic end of Paul Tilley.

4) You won’t be able to hide. Think about it. The blogger can give their opinion about something in a blog post under an editorial guise, but the commenters who respond may now face retribution because... they responded in kind? I’m okay, but I now have to reveal someone’s identity? Meh I say!

I’LL GO TO JAIL FOR YOU PEOPLE LIKE THE CITIZEN JOURNALIST I AM!

The hell I will. On the surface though, you could argue that this is no big deal, and that no agent or studio will care enough about what someone says about Mel Gibson on a blog somewhere. And if the person wants to comment badly enough and still tear Mel a new one, they can take the impractical steps of using a proxy site or public computer.

On the other hand, is this now an opportunity for agents in the entertainment field, many of whom are lawyers, to now sue on behalf of their client? If you think they can’t or won’t, again, two words: Napster. This issue started with them by making an example out of the one, something the industry is still prosecuting people for.

5) What if a commenter is right though? What if the boss they criticize is an asshole, is creative with the books or extra creative with an intern while his wife’s at home? Just because the commenter remains anonymous doesn’t mean the accusations are any less valid.

No content on my limited knowledge of all things legal beyond a few John Grisham films, I posed a few other questions to Michael McSunas, attorney at Chambliss, Bahner & Stophel. He was also formerly ad agency side on a major consumer brand as legal council.

In other words, he could find a way to sue me for that last sentence.


Q: Not being privy to the specific way in which the case was filed, shouldn’t it have been argued as free speech?

A: I believe that is what the anonymous blogger argued - that her postings were her opinions, not “facts.” I think it really came down to whether calling someone a “skank” (among other things) and posting provocative photos of that person could be considered defamatory. Free speech does not include the right to make libelous statements about someone (now the definition of “libel” is a whole other issue). The judge basically said that this blog crossed the line from protected free speech to libel.


Q: Regardless of whether the commenter is correct or not re: their facts, don’t they have the right to say whatever they want, because it’s in the context of an editorial/opinion blog?

I think so. The judge believed that her postings were fact and not opinion. I understand somewhat, if someone posted that you were a “sexual predator” or a “racist” are they posting a fact or an opinion? Is it a vague insult (like calling someone a “jerk” or does it cross the line into defamation?) or is the poster trying to assert a fact about you?


Q: Would you expect to see the floodgates open now and more cases of bloggers being compelled to out the source of anon comments? (Specifically, can you see ad blogs now being targets for agencies who don’t like what anonymous commenters say about creatives? Or would they have to have a real solid case beyond hurt feelings.

Funny, I was just discussing that exact example with another attorney. It is a scary thought that you can be sued for what you thought was anonymous critique. Think of the personal comments people leave on some advertising blogs about the competency of the heads or ECDs of certain agencies! I am worried that this could open the floodgates, at least in New York where this case was decided and so many ad agencies are located. Maybe we need to all start posting our thoughts from the computers at the public library or Best Buy (hat tip to Crispin) so no one can figure out who we really are!


Q: What are your general thoughts on the case?

I can understand the judge’s reasoning but I don’t agree with it. Fortunately, most case law from other jurisdictions in the USA has gone the other way. Are we all going to have to leave our real names when we leave comments on blog posts? This could really have a chilling effect on the free-for-all school yard atmosphere of the blogosphere, which I think the majority of us enjoy.


UPDATE: Alan Wolk pointed out a distinction that I should mention, but one which actually makes this situation potentially more ominous for bloggers. The New York Post article indicates that the blogger herself was responsible for the original postings and was the target of the lawsuit. I looked back at my original post and found the blog on WebCite where I first traced the quotes and thought they were in the comments section. (As such, there were some interesting ones, but archive sites don’t yet display those pages.)

Regardless, this is potentially worse news for bloggers. It’s not only people like blatantly libelous Skank Woman Blogger (SWB) who can be sued, but what about someone with a lower threshold for negative comments who sues over a bad review of a book or restaurant ont he same grounds, claiming the post damaged their business?

14 comments:

Bob Knorpp, @thebeancast said...

This one is hard for me. Legally I agree with Mike. (@adlawguy on Twitter if you want to follow him.) But still, I'm not a fan of anonymous commenting. In fact, on my own blog you have to at least be a registered user to leave a comment. (Although you can do so anonymously. And yes, I know, I know...bad practice, but whatever.)

Let's look at this rationally. Libel is illegal and ethically wrong. Saying someone is a Nazi when they are not is wrong. Showing believable doctored photos is wrong. So such activities should not be protected under the cloak of anonymity.

Further, even if you just want to say nasty things, I think it's the cheapest of the cheap shots to do this anonymously. Have the guts to say it to my face. Anonymity buys you no credibility in my book.

But having said all this and established my own personal stance on the issue, I must say that the potential repercussions of this decision are a little scary. There are clearly times when anonymity is needed, such as when a copywriter fears for his job if he exposes his agency's wayward practices. But even then, such comments better be backed up with facts and documents.

I'm usually more of a "defend the little guy" person than this. But clearly anonymity has been abused in the blog world. And while I don't advocate legal action as the solution, something does need to be done to maintain what is essentially a privilege, not a right.

Anonymous said...

HA HA HA I AR ANONYMOUSE!

Ă…sk Dabitch said...

But seriously, in some juridsdiction (caugh - sweden - caugh) the blogger is liable for the anonymous comments the nano-second they make any sort of moderation effort at all (read: cull spam). Thusly, no anon-comments allowed on my site. Back in the day when they were, peoples IP#'s were outed to the public. Not because I wanted everyone to know who they might be, only so that when lomg threads broke out between anonymous1 and anonymous2 you'd be able to tell the difference between them.

Anonymous said...

If the New York Times printed a letter from a reader which opined that Brittany was a whore, and went on to state why then could they be sued? Probably. But that letter would never be printed from an anonymous source. Quoting anonymous sources is a staple of investigative journalism, and was vigorously challenged during the bush years (think: Valerie Plame, etc.). In broadcast we tune out the standard: "The preceding opinion doe not reflect the views of Bla Bla Bla..." disclaimer language. It seems obvious to me that the solution may lie in a posted disclaimer disavowing any responsibility for the views of posters, anonymous or otherwise. There are plenty of sites that allow posts without surrendering an e-mail or other traceable info. I see it as a freedom of speech issue.

The M Show said...

I'm going George style on this one - 99% of the people leaving Anonymous comments do so because they are pussies. I think we should follow Taiwan's lead and require your SS# to post.

It's not like people wear the cloak of anonymity to highlight injustice while fearing the retribution of the ruling class, they do it so they can act like douchnozzles.

Anonymous said...

You spelled douchenozzle wrong asswipe.

Anonymous said...

Anonymous postings don't necessarily mean that someone is a wimp. It means that I would like to say something that might be controversial because of which there is a threat to my existence.

E.g. try something with Islamic apologists or against the holocaust based on facts. You're dead if they find out your identity ....

The M Show said...

Sorry, I can't believe that an anonymous comment is going to change anyone's opinion in regards to their position on Islam or the Holocaust.

mtlb said...

There might be irony in someone anonymous offended at the spelling of douchenozzle, not sure yet.

ennyway...

@The M Show - Or change because of the spelling of a particular word. Hilter, notoriously poor speller.

re general vibe of hiding from government death squads...

That's legit, but a less extreme example of why people are anon falls somewhere between that and John’s douchetards (new, improved!) which I mentioned in the post.

Especially in advertising, you see a lot of positive/legit anon comments where the user wishes to keep their identity out of it so as not to bring attention to their agency.

@Ask - Yeah, the moderating of comments is touchy. One site I worked for had no problem editing a user's comments they didn't like. (You see some of that on Twitter now where people will shorten a tweet for the purpose of a retweet and edit words out or rewrite it.)

Ben Kunz said...

Bill, my dear friend:

Elegant debate, but I disagree. Blogs need to grow up. They are just another form of communication, and any communication can cause damage and so must have safeguards against that risk.

First, let's remove the terms "blog" and "newspaper" and "offline" and "online" -- 'cause the channel doesn't matter -- and just call it editorial content. The same rules should apply everywhere. If I libel you, causing harm, then I am culpable. Because libel is possible, commentators need to provide their names to take ownership. Because libel can cause serious harm, editorial channels, including a blog, need to have sequential liability meaning that rather than *them* holding the buck, they need to pass it to the *author* who made the libelous statement.

If A uses B to write about C, and A damages C, then A is liable. His or her identity must be disclosed. If not, then B could be responsible for the damage. This chain of responsibility is basic.

Saying, "well, gee, we're a blog, and we have a free-wheeling atmosphere, so no one is responsible if we publish something that causes Bill Green to lose his job, house, and family fortune ..." um, sorry, won't work.

The simple story here is blogs are just another form of editorial content that must abide by the rules of society. If you damage someone in society, you must pay a price. If no one is liable, then society loses its protection.

To think that blogs are somehow exempt just because they aren't printed on paper pulp is a little silly, isn't it? Why in the world do rules of communication change based on what tool I use to scratch my opinion?

mtlb said...

@Ben - You’re framing it as a black and white thing and I really think it’s more than that. I agree, it’s not okay to cause someone to lose their job over negative remarks.

If that’s all it were in this case, then no prob and sue away. But there’s collateral damage occurring.

Little by little, this is how rights get taken away. This could easily go from someone making libelous statements anonymously to now, nobody is allowed to be anonymous at all—and that’s a huge difference.

Think of the ramifications of that. Whistleblowers? Outed. You mention editorial concerns. What about journalists and their sources? Do they now have to reveal them all?

You mention rules of society too, so I’ll bring in the law/justice part of society to explain what I mean. The usual saying is what, “Innocent until proven guilty,” “Rather a 100 guilty go free than one innocent...”

This ruling says that doesn’t matter anymore. In effect, the opportunity to act civil as an anon commenter/blogger has been taken away.

I’m not just talking about libelous comments being allowed. Those will take care of themselves if the offended wants to pursue things legally, as she did here.

This is where I brought up baby > bathwater though because in effect, anon bloggers or commenters who aren’t being assholes will now pay the price, and they’ll stop posting or water down what they say.

Sounds like I’m going overboard, because we already have laws for conformity on things like seat belts, helmets or smoking in public.

This one feels different because it goes to the heart of free speech.

We won’t have heated debate because someone will be offended over something. Look how PC we’ve become with everything.

Instead of sending an email to the webmaster or editor, what, someone will call a lawyer now? For what, because someone else got called a skank?

(Go to TMZ, Perez Hilton or any Gawker site and read what gets said about people.)

And seriously dude, look at the pics of her (ALL of them), then consider my other point. What if the comments were true? Would things be different?

Isn’t this just a case of a model who was disfigured in an unfortunate attack who then had limited career options, and oh by the way, along comes a chance to sue over this?

That’s a whole other topic but certainly not out of the realm of possibilities here.

And what about journalists who have to protect their sources? Based on this case, seems they’d be compelled to reveal their sources all the time.

Unrealistic, maybe, but then, once there’s precedent for something on the books, no telling what a lawyer might do with it in the future.

How many cases are there where the Patriot Act or RICOH statues were used against people they were never intended for? Granted, the dumbass with the laser pointer deserves a fine, but just because anti-terrorist measures are on the books, he’s screwed.

But, I’m no lawyer, just an ad blogger. ;-p

Anonymous said...

Oh, to hell with "you're a wimp if post anonymously."

Anonymous said...

There might be irony in someone anonymous offended at the spelling of douchenozzle, not sure yet.usagamezone.blogspot.com my blog must try

Anonymous said...

Many interesting/intelligent comments here. The ability to be anonymous or use a pseudonym has been one of the most important things we have had not just in the age of the internet but in the history of our nation; the Federalist Papers were written under pen names.
But...I do think that if someone is using the cloak of anon. to disseminate false or threatening information that is destructive, or libel statements about someone then the blogger has every right to "out" them if possible.
When you choose to make an anon. comment you take the risk of being unmasked, especially if your intention is to deceive, cause harm or spread false or confidential information.
But outing someone simply because you disagree with them is idiotic. But for each malicious, libelous commenter out there it places our ability to use anonymous comments in jeopardy one way or another.

There are (as some have said) very good reasons to use a pseudonym or anon. identity when commenting or writing a blog, editorial, etc.
But especially on the internet, the expectation of true privacy is almost relinquished by virtue of technology. Even if someone who writes using an assumed identity, they should be prepared to stand behind whatever statements and actions they make using it.