Oct 202010
 October 20, 2010  Posted by  Court, Online

In her latest column, Kashmir Hill writes about a number of recent cases where people have used the courts to unmask anonymous speakers.  Carla Franklin’s case has been described by some as fighting back against “cyberbullying” or “the case that could end cyberbullying.”   But if you read the filing, you’ll see that it relied heavily on the notion of defamation per se as if that would open the doors to the kingdom of exposing an anonymous speaker’s identity. Sadly, it worked.

Jennifer Peltz of The Associated Press reported:

The videos, posted on Google-owned YouTube, were clips from an innocuous student film in which she had appeared years before, coupled with personal information about her to create an unsettling online shrine, she said. Franklin did some modeling and acting before becoming a consultant to nonprofit organizations.

The comments, made though another YouTube channel, featured a sexual slur and were posted alongside videos she made for Columbia Business School while earning a master’s degree there, she said.

The postings were humiliating, creepy and potentially hurtful to Franklin’s professional prospects, she and her lawyer have said.

Potentially hurtful?  Humiliating? Creepy?  How do you get from there to demonstrating defamation as it’s defined in New York law?  One way is by saying that the defendant has engaged in defamation per se. But is calling someone a “whore” really defamation per se or does the plaintiff need to get a thicker skin?

Do we really want a court to hold that calling someone a whore is defamation?  Will we have to watch everything we say?  Will “ho” become defamation?  How about calling someone a “cocksucker?”  Will that be defamation per se if it’s used to describe a man?

Even assuming everything Carla Franklin alleges about others is true, should the courts be unmasking anonymous speakers just because they call someone a “whore?”  I don’t think so, particularly when the word has more than one meaning and even in its first meaning (prostitute), most people would understand that it reflects the speaker’s opinion of the other person and is not usually a statement of fact.

Kashmir also writes:

Some people are upset about the idea of anonymous commenters being outed

We are concerned that they are being unmasked without adequate protection for their First Amendment rights and their privacy. I doubt that Dan Solove, the ACLU, EFF, or I would be upset if a plaintiff really made a strong showing that they would likely prevail in an actual defamation lawsuit. The problems have been (1)  the courts granting the request to unmask without requiring plaintiffs to meet a sufficiently high standard to warrant the loss of protection of anonymous speech, (2) people potentially abusing the court process to find out who’s saying nasty things about them and (3) people attempting to use this process to chill others’ protected speech. Having been the defendant in one such cyberslapp/defamation action, I am fully aware that others might feel afraid to speak their mind for fear of having to incur costs to defend in litigation.  SLAPP suits are bad, regardless of whether we preface them with “cyber” or not.  They may chill speech, incur unfair costs to defendants, and if they succeed, they weaken protected speech.

but as I’ve written before, defamation online is as illegal as defamation offline. Illegal speech doesn’t become legal because it’s done anonymously. And courts will do their best to help see justice served.

Yes, but, the speaker also has rights to privacy and anonymous protected speech. Who – if not the court – defends their rights in an initial motion?   Google certainly doesn’t represent their rights.

The courts should be the guardian of the John DOE’s rights to anonymous speech and privacy, and only strip John DOE of those rights if the plaintiff can make a case that warrants it.  In my opinion, Carla Franklin’s case didn’t.

According to Google, there are 21,900,000 instances of “whore” on the Internet.   That could make for a lot of potential defamation suits that could keep lawyers fat and happy for years. But is it right? No.

  2 Responses to “Simultaneously eroding privacy and protected speech, one lawsuit at a time”

  1. From what I’ve read of this case, it does appear that the issue was broader than Ms. Franklin simply being called a “whore”. Apparently there was a enough to constitute a certain level of stalking given the number of places and other content that was being continuously shared about her. To the extent that the behavior of the anonymous poster goes beyond making some comments, and becomes a campaign to pursue and attack someone online at every oppty, I’d have say that a firm line needs to be drawn here. Mind you, I’m as much of a privacy advocate (or @privacyfocused 😉 as you’ll find out there, but people shouldn’t mistake that right for one that gives them unlimited authority to abuse someone, using anonymity as a shield.

  2. Damn. I linked to the wrong court filing in my post. Fixed that now. Did you read this? I take cyberstalking or stalking seriously. Indeed, they are criminal matters and law enforcement could have sought to compel disclosure if they wanted to charge or prosecute this. But when I read the court documents, what I see is a claim for defamation based on comments on YouTube pages. Usually in such filings, I see examples of statements that the plaintiff considers defamatory. In this case, there is only one specific comment cited – the word “whore” – to get the court to agree that there is defamation. Without that claim that “whore” is “defamation per se,” do they have enough to get the judge to order Google to disclose? I don’t think they do.

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