Former Vogue cover model, Cohen, 36, succeeded in her effort to find the identity of Port. Manhattan supreme court Justice Joan Madden ruled that Cohen was entitled to the information and ordered Google to turn over the information.
The blogger who went by 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 Port’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.
Under the common law, per se categories of defamation included allegations of being unchaste or engaging in sexual improprieties. (A somewhat dated 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 Port. Port is part of a segment of the web that is vicious and juvenile. Using anonymity to give vent to their hateful diatribes. 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.
Ironically, Port blames Cohen for the “public spectacle and a circus” and insists that t”by going to the press, she defamed herself.” That does not quite track with the law. It is true that Cohen magnified the attention to the site, but she is entitled to pursue a defamer. Port noted that “Before her suit, there were probably two hits on my Web site: One from me looking at it, and one from her looking at it. That was before it became a spectacle. I feel my right to privacy has been violated.”
Port’s claim of her own privacy being violated is a bit strained given her vicious and cowardly attack on Cohen. Port did not have the integrity to make such claims under her own name. While I have expressed great concerns over Cohen’s claims of defamation, Port’s claims of victimization leave me cold.
Port is a 29-year-old Fashion Institute of Technology student and announced her intention to file a $15 million federal lawsuit against Google. She did not call Google a shank corporation but insists that she is the one defamed.
She insistst that Google “breached its fiduciary duty to protect her expectation of anonymity,” according to her attorney Salvatore Strazzullo who analogized Cohen’s use of anonymity to the writings of the :Founding Fathers.” Of course, the Federalist Paper later deleted that passage where Alexander Hamilton writing as Publius called James Madison “an anti-federalist shank who beds with the any proletariat ragamuffin with a flask and a cause.”
I fail to see the credible claim against Google which fought the case until ordered to turn over the name. I was surprised to see Google drop the case rather than appealing the judgment — which I assume is the basis for such an action. However, it is hard to see that a discretionary appeal is required under any such theory. Indeed, Port could have intervened and sought an appeal to stay the actions of Google. While Google acted quickly after the ruling, this was an obvious possibility. It will be interesting to learn what Google’s attorneys told Port before the ruling. The assumption is that they gave her an opportunity to intervene and gave her forewarning of their decision to release her name.
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