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?