Peter A Clarke

Today’s Sydney Morning Herald is doing the meltdown thing about a plaintiff, Liskula Gentile Cohen,  successfully forcing Google to provide identifiers of a blogger.  The ruling enables  Cohen to  identity the blogger that described her as a skank and an old hag.  Actually the blogger said:

“I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to Liskula Gentile Cohen,” the anonymous blogger wrote.

“How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.”

Very blogspeak.  Cohen is planning on suing.  In the Australian context there would be some interesting pleading challenges if one was to run a justification defence.  But the US laws are far more difficult for the plaintiff, particularly if Cohen is regarded as a public figure.  Cohen has apparently already made contact with the blogger by phone.  They know each other.

The Times on line (UK) has run a similar theme to the Australian Press reports with  Vogue model Liskula Cohen wins right to unmask offensive blogger, but it should know better.  It identified Richard Horton, the Night Jack blogger, months ago and fended off his attempt to maintain anonymity publish his details prompting a breathless analysis in June under the banner Analysis: bloggers can no longer be sure on anonymity,  The decision, by Mr Justice Eady, of The Author of a Blog v Times Newspapers Limited refusing an injunction to protect a blogger’s anonymity is hardly ground-breaking law.

There has never been a separate stand alone right to unmask/identify a blogger.

The interlocutory decision of the Manhattan Supreme Court sets no precedent.  The case involves long established principles relating to discovery, whether non party or preliminary discovery.   In Norwich Pharmaceutical Co v Commissioners of Customs and Excise (1974) AC 133 the House of Lords held that in certain circumstances an independent action for discovery can be brought against a person for the purpose of obtaining information about a wrongdoer.  That principle was directly applied in relation to Internet intermediaries in the English High Court decision of Totalise plc v Motley Fool Ltd.   The issue is no different with Ms Cohen in her action.  She took action against Google for the same reason, to require it to provide  information and any identifier it had in its possession and control of the blogger in question.  The same issue has been run in Australia.  In  Resolute Ltd & Anor v Warnes [2000] WASC 35 (9 February 2000) the Supreme Court of West Australia made orders permitting an applicant to get details of an author of a publication by discovery and examination.

Bloggers hever never had a status in law separate from any other publisher. The medium may be (not so) new to the law but the principles are as applicable as if the comments were made on the front page of a daily newspaper or inside a Moroccan bound book.  They may have thought they inhabited a Narnia like kingdom where the laws of men don’t apply and Star Trek is the national religion but that is a sociological discussion for another time……….

So the law is well settled. The process is not simple and can be quite expensive.  Court’s do not make orders for non party discovery or examination without a proper foundation.  That takes preparation, an interlocutory application and time.  Given the expense of bringing this application and weighing that against the likely benefit of recovering from a viral blogger it is hardly surprising that this is a road less travelled to date.  That  is no excuse for  nonsensical reporting today.  What really surprised me was listening to Jon Faine on 774 this morning talking about new law/precedent being set by Cohen’s case.  He gushed as if he was present as he talked this and all sorts of other nonsense as with Liskula Cohen.  She was happy to wear the title as a pioneer.  Hard to blame her, it has been an expensive process (she hinted at $50,00 in legals) and no dobut she feels vindication. Of course she is only at the foot of the mountain. Based on her working the talk circuits, see reference in today’s SMH article Model confronts ‘skank’ blogger, I wonder how much she is using this as a business opportunity.  Frankly confronting the publisher of a defamatory publication by phone and then talking about her (in this case) prior to suing is, at best, incredibly foolish. I wonder how much this has been turned into publicity opportunity rather than the first step to litigation proper.

As a former practising lawyer Faine should know better to engage as he did.  It appears that  legal knowledge and Mr Faine are not regular bedfellows on the laws of defamation. That surprises me given he is a broadcaster and was on the law report, if many years ago.

On a final note it is interesting to note that “skank” is defined in the Shorter Oxford Dictionary as “A steady-paced dance performed to reggae music…”  Somehow I suspect I need a newer version of the OED. Answers.com has two alternate definitions:

1.    Disgusting or vulgar matter; filfth;

2.   One who is disgustingly foul or filthy and often considered sexually promiscuous. Used especially of a woman or girl.