Carla Franklin, a business consultant who was offended by videos of her being uploaded to YouTube without her consent and by comments calling her a “whore” said she wants to sue the people who uploaded the video and made the comments, but to do that, she needs Google to reveal their identities. And for Google, that means getting a court order.
By October 29, she may have their names, unless Google or the anonymous commenters/uploaders appeal an order handed down Friday by Judge Judith J. Gishe in State Supreme Court in Manhattan.
Franklin first initiated legal action on August 16, seeking court intervention to compel Google and YouTube to disclose the identity of the person or persons who posted defamatory statements on the Columbia School of Business website, between approximately June and October of 2009, referring to Petitioner as a“Whore,” as well as published a YouTube internet channel dedicated to Ms. Franklin, including footage from a film that Ms. Franklin appeared in several years ago, without her or the film owner’s authorization.
In the filing supporting an order to show cause, Franklin sought the identity of users “greyspector09,” “JimmyJean008,” and “JoeBloom008.”
Franklin’s attorney, David Fish, argues that the
defamatory accusations are baseless and untrue, go far beyond simple assertion of personal opinion, and are calculated to cause distress, to defame Ms. Franklin, and to damage her personal and business interests and affairs.
As the postings are libel per se (false statements that impute a lack of chastity are considered defamatory per se; the term “whore” imputes a lack of chastity), Ms. Franklin does not need to prove damages, as the legal injury may be presumed from the fact of publication itself.
In this case, Ms. Franklin will proceed under a theory that the web postings are libelous per se because they called into question her chastity and as a professional business consultant, they relate to her reputation and her business. The explicit definition of libel per se is “any written or printed article … [which] tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.” Rinaldi v. Holt, Rinehart & Winston, Inc, , 42 N.Y.2d 369,379,366 N.E.2d 1299, 397 N.Y S.2d 943 (1977). The statements posted in this case fall into this definition since the Court of Appeals holds that “written charges imputing unchaste conduct to a woman are libelous per se.” James v. Gannett Co., 40 N.Y.2d 415,419,353 N.E.2d 834, 386 N.Y.S.2d 871 (1976).
As to whether the statements posted on the web page are statements of fact is a question of law. See Rinaldi, 42 N.Y.2d at 381. JOHN DOE’S andor JANE DOE’S use of the word “whore” clearly goes far beyond asserting opinions. They are used to factually define Ms. Franklin and damage her reputation.
But does “whore” really mean what it used to mean, and does it have the same impact it had years ago? Another New York judge agreed that “skank” imputed unchaste conduct in the Liskula Cohen discovery motion, but hasn’t “whore” taken on a more broader meaning by now? Most dictionaries, while still providing a definition of “whore” akin to “prostitute,” also include a definition relating to a person who compromises or sacrifices principles for personal (commercial) gain. If I were to say, “You’re a whore because you sold out our organization’s mission to get a job with our enemy,” is that libel per se or is that a statement of opinion? Shouldn’t the context of the word “whore” be taken into account before determining whether it is libel per se?
And will she really sue the still-anonymous defendants, or is she using this legal action to simply get their names without any real intention of suing them? Although her court filing indicates an intention to sue, in previous coverage of this case, The Associated Press had reported:
Franklin believes she knows who posted the material about her but wants to be certain before publicly naming names, her lawyer said.
Neither Google nor YouTube appear to have responded to the pre-discovery motion, and the judge granted the motion on October 14.
Will either Google, YouTube, or the John DOE or Jane DOE’s appeal? We’ll have to wait and see, but if this order is not challenged, it may have a chilling effect on free speech.
Update: Adrian Chan at Gawker.com has also blogged about this case and subsequently obtained a statement that Ms. Franklin reportedly issued through FreeSpeechv3.org. Her statement, which you can read in his column, asserts that the motivation for the case is really an attempt to address harassment and cyberstalking.
So: does she really intend to sue for defamation, or is that just a means to get the identity information so she can file some other action? And if this is a criminal matter, why not let law enforcement seek the disclosure of identity information?
If you’re engaging in pre-discovery for a defamation action, that has free speech implications. If you’re trying to track down someone who invaded your privacy by uploading videos of you without your consent, then why not file a privacy action? To say you’re trying to address a criminal matter this way doesn’t sit well with me when you’re attacking anonymous speech that’s not particularly offensive to most people. But then, I’m not a lawyer, and this type of strategy or tactic may be more common that I knew. I expect we’ll see some lawyers picking this case and Ms. Franklin’s explanation apart in days to come. I look forward to reading their informed opinions.