When is “outing” bloggers actionable?

Lawsuits involving anonymous bloggers and attempts to out them were prominent in the news last week. How do the courts handle attempts to unmask bloggers and how can bloggers fight back if they have been outed?

Last week, model Liskula Cohen succeeded in getting a New York court to order Google to reveal the name of the anonymous blogger behind the “Skanks in NYC” blog on blogspot.com. The court rejected the blogger’s claims that the use of terms like “skanky” and “ho” were hyperbole and that the blog represented statements of opinion and not objective fact. Finding that Cohen had established sufficient grounds for a defamation lawsuit, the court ordered Google to reveal the name of the blogger. Although Cohen subsequently indicated that she would drop the defamation lawsuit, the unmasked blogger, Rosemary Port, is angry rather than apologetic and told the NY Daily News that she will sue Google for $15 million for revealing her identity:

“When I was being defended by attorneys for Google, I thought my right to privacy was being protected,” Port said. “But that right fell through the cracks. Without any warning, I was put on a silver platter for the press to attack me. I would think that a multi-billion dollar conglomerate would protect the rights of all its users.” In her suit, she’ll charge Google “breached its fiduciary duty to protect her expectation of anonymity,” said her high-powered attorney Salvatore Strazzullo.

“I’m ready to take this all the way to the Supreme Court,” Strazzullo said. “Our Founding Fathers wrote ‘The Federalist Papers’ under pseudonyms. Inherent in the First Amendment is the right to speak anonymously. Shouldn’t that right extend to the new public square of the Internet?”

Strazzullo’s statement may be confusing to those who are aware that the right to speak anonymously on the internet does not extend to speech that would not be protected if spoken non-anonymously.

In her opinion, Judge Joan Madden indicated that Google had “no substantive opposition to [Cohen’s] application,” and Google itself was not being sued for anything other than revelation of the blogger’s identity. As the judge described Google’s response to the suit:

Google merely objects that petitioner’s request for relief is overbroad, vague and ambiguously worded, and unduly burdensome.

Should Google have put up more of a fight? Port and her attorney clearly think so, and bloggers who use blogspot.com may wish to make note that Google may not be their best advocate if they are ever in a similar situation. The blogger’s own counsel, however, did provide a vigorous defense [pdf] on the First Amendment issues, but it did not persuade the judge.

While the Cohen case was the most highly publicized case last week, there was also news on another case that seemingly involves an attempt to chill speech on issues of public concern. The case of the “Wilson Yard Defendants” is an example of what is traditionally viewed by First Amendment advocates as a SLAPP suit — a Strategic Lawsuit Against Public Participation. In Fix Wilson Yard v. City of Chicago, citizens filed suit in court to block a Chicago development project. In response, the defendants issued subpoenas to unmask anonymous online critics. So far, EFF and co-counsel Charles Mudd Jr. have been able to block the subpoenas and have now moved to quash them entirely.

At least 25 states have enacted legislation to protect against SLAPP lawsuits. But the issue of when a blogger’s identity should be revealed has led to different conclusions in different courts and areas. As John Sutter explains on CNN:

Courts have set general guidelines that a plaintiff must meet before forcing a person out of online anonymity. But the rules are still in the making and are up for interpretation, said Daniel Solove, a law professor at the George Washington University Law School and author of “The Future of Reputation.” On one end of the spectrum, a court could out a blogger simply because a legal action is filed against the person. That’s troublesome because any good attorney could leverage the courts simply to expose a person’s identity, he said. At the other extreme, a judge could say a plaintiff must prove the blogger defamed someone before forcing a company like Google to reveal the person’s identity.

And John Timmer of Ars Technica writes:

The precedents that have been set so far have been a bit mixed. In cases involving defamation, a Virginia court has determined that plaintiffs need only to show that they have a “good faith basis” for their accusations in order to have an otherwise anonymous defendant named. In contrast, New Jersey courts have decided that each claim against a defendant has to be supported by evidence. The latest to weigh in is the District of Columbia’s Court of Appeals, which is tackling a case in which a John Doe defendant lodged anonymous accusations of software piracy against a company, which has sued him for defamation. The DC court ruled [link added by Dissent] that the case may proceed, and provided guidelines that the trial judge should use in order to determine whether the defendant should be unmasked.

Thus, the right to remain masked or anonymous when blogging is not uniform across courts and jurisdictions, and Liskula Cohen’s lawsuit against Google might have resulted in a different outcome in a different jurisdiction or even in front of a different judge in the same jurisdiction.

Do Unmasked Bloggers Have Any Redress?

But suppose that Liskula Cohen went forward with her defamation lawsuit against Rosemary Port and the case was either dismissed on summary judgment by another judge who viewed Port’s statements as protected speech, or that a jury found for Port. Would Port have some redress for the fact that she was stripped of her anonymity or did Cohen have the right to publicly unmask her even if she had done nothing wrong under the law? And did the blogger known as Publius have any legal redress after Ed Whelan unmasked him via non-litigation means? Should there be — or is there — a cause of action for bloggers who have been “outed” to sue for invasion of their privacy if they have done nothing wrong and have only engaged in protected speech?

Over on Technology Liberation Front, Berin Szoka opined that “one need not accept the pernicious idea that the government should punish the outing of peusodonymous/anonymous writers, which is simply a restraint on legitimate free speech.” But is outing “legitimate free speech” that should be immune from civil litigation? As a commenter to his blog entry notes:

No one is proposing to make “outing” against the law (although someone could conceivably be sued for the tort of public disclosure of private facts in a civil case) because that would have obvious first amendment problems.

In Florida, Tom Rich and his wife have filed a civil suit against the Jacksonville Police Department for “outing” Rich to his church as the author of a blog critical of the church, but that is a lawsuit against a governmental agency and not an individual. So I put the question of redress to both Daniel Solove, professor of law at the George Washington University Law School and author of several books on privacy law, and Matt Zimmerman, staff attorney for the Electronic Frontier Foundation. Solove responded:

If via a court proceeding, then there’s no claim because of court immunity. But if a party filed a frivolous suit to obtain identity, then there might be a case — I discuss a case like this in The Future of Reputation. Or, if a person, not via a court suit, revealed the identity of an anonymous blogger, then I’d say that the blogger would have a public disclosure claim.

Zimmerman concurred with Solove, in part, and indicated how difficult it might be:

Depending on the circumstances of the case, e.g. if a litigant used a subpoena to out a critic in a (legally) frivolous case — and the anonymous speaker was not given the opportunity to object to the legal process by which the critic was outed — I can imagine some variety of abuse of process claim that could be brought. If an anonymous speaker was outed through completely legal means that had nothing to do with using the court system, I think that it’s much tougher. There’s some First Amendment tension between the right to speak anonymously and the right of the criticized to speak him/herself. That’s not at to say that I would agree that tactics are fair or morally defensible in all cases, but as a legal matter it’s a tough sell. Under the “marketplace of ideas” model for vigorous First Amendment protection for unfiltered debate, publicly identifying your critics (legally) is likely not going to be viewed as illegitimate.

The difficulties described by Zimmerman help explain why there seems to be no case law on the issue of anonymous bloggers suing their outer for public disclosure of private facts or intrusion on solitude or for intentional infliction of emotional distress. Could such a lawsuit prevail, and if so, under what conditions? It seems like it might be a difficult battle to successfully sue someone for invasion of privacy for unmasking online identity as any such case might pit the First Amendment against itself, but we won’t know until someone tries it.

Some Resources for Bloggers

• EFF’s Legal Guide for Bloggers
• California Anti-SLAPP Project
• Citizen Media Law Project
• The Media Law Resource Center  has a section on legal actions against bloggers
• The First Amendment Project (FAP) has an Anti-Slapp Resource Center
• EFF’s anonymity page.