A Manhattan supreme court Justice Joan Madden ruled that Cohen was entitled to the information and ordered Google to turn over the information.
Anonymous wrote that “I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to Liskula Gentile Cohen” saying that the “40-something” who “may have been hot 10 years ago.”
Justice Joan Madden rejected the blogger’s claim that such sites “serve as a modern-day forum for conveying personal opinions, including invective and ranting.” The blogger insisted that he was merely expressing his opinion. He is hardly the Thomas Paine of bloggers, using juvenile attacks on Cohen as a “skank” and a “ho.”
Cohen says that she was “shocked and embarrassed” by the entries “that were used to describe me as a promiscuous woman who is filthy, disgusting, foul and a whore.” The entries also trashed her for her appearance, hygiene and sexual conduct.
This could make for a fascinating torts case. First, there is the question of the right of Google to keep sources confidential. The court may be less than sympathetic since this is far removed from the traditional journalistic realm. Other individuals have sued for such trash talk on sites with little success as with the Dontdatehimgirl.com case. Second, there is the question of the defamation itself. Truth remains a defense, which would make this a nasty fight in discovery and trial (if it went that far).
Under the common law, per se categories of defamation included allegations of being unchaste or engaging in sexual improprieties. (A somewhat date and often sexist category that applies almost entirely to women).
This would certainly fit that category where the anonymous critics write “She’s a psychotic, lying, whoring . . . skank . . . Desperation seeps from her soul, if she even has one.” However, this seems more like opinion than factual assertions.
Courts will apply the standard of applying any non-defamatory meaning (if there is one). Under the common law, the court adopts the less defamatory meaning of common terms, including trash talk. One of the leading cases is Roby v. Murphy where the court explores the meaning of the term “slut.” This standard is fully explored by the Illinois Supreme Court in Bryson v. News America.
Then there is the complication that Cohen is a public figure, which puts her under the higher standard of proof of New York Times v. Sullivan. While her career has diminished in recent years, she would still satisfy the standard for a public figure and need to prove actual malice (which would seem easier than usual here). Google itself is not likely liable under governing precedent such as the Zeran case, discussed here.
Cohen has had a rough time of it. In January, 2007, a man named Samir Dervisevic cut her in the face after she objected to his helping himself to vodka at her table at Club Ultra. What is astonishing is that this horrible act (that ruined her career as a model) resulted in just 30 days in jail. That is fewer than the 46 stitches needed to piece back her face. She ended up having repeatedly plastic surgery. What type of prosecutor or judge would accept a plea agreement like that? Not surprisingly, after the prosecutors and the court failed to impose a meaningful sentence, this thug was arrested again throwing three glasses into a woman’s face at a hotel.
The concern for many is that this decision will expose other anonymous critics to lawsuits, including bloggers with a more substantive contribution than this obvious creep. For example, it would appear to support someone like Scientology Leader David Miscavige or other litigious organizations to pursue anonymous critics. Calling a model a “skank” is analogous to calling a politician “corrupt.” Without any specific factual allegations, it is usually viewed as opinion regarding a public figure.
I am very sympathetic to Cohen and have nothing but contempt for the person who wrote these things. I agree with her that this person is a coward and lowlife. The implications of such lawsuits, however, present a concern for civil libertarians and whistleblowers alike. These are difficult cases that balance the value of anonymity against the right to pursue defamers. The problem is one of limitations. If calling a model a “skank” is enough to strip anonymity, critics yield to the chilling effect of potential litigation and avoid postings that might expose them to companies and public figures.