Legal experts think that a fashion student’s suit against Google has little chance of success. She had anonymously called a model a “shank” and was subsequently identified by Google. -DB

San Francisco Chronicle
August 28, 2009
By James Temple

The blogger who anonymously tarred a fashion model as a “skank” before being outed by Google Inc. under court order generated considerable public outrage when she announced plans to sue the company for $15 million, but few lawyers other than her own believe she has a case.

Rosemary Port, a 29-year-old Fashion Institute of Technology student, used a free Blogger account provided by the Mountain View company to label Vogue cover model Liskula Cohen an “old hag,” “ho” and other less than flattering things. Cohen successfully sued to have the blogger’s identity revealed by Google, arguing the comments were defamatory.

As Port’s name quickly spread throughout the tabloids, she decided to fire back. Her attorney, Salvatore Strazzullo, told the New York Daily News Port plans to charge that Google “breached its fiduciary duty to protect her expectation of anonymity.”

Strazzullo further argued that anonymous speech is protected by the First Amendment, stressing that the Founding Fathers wrote “The Federalist Papers” under pseudonyms.

“It will be a very difficult case to prove,” said Chris Hoofnagle, a lecturer at the UC Berkeley Law School who focuses on information privacy.

There are two major problems with the approach, he said. First, while there’s a legal obligation of trust between doctors and patients or lawyers and clients, no such inherent understanding between a blogger and a free online service has been recognized by the courts.

Second, even if Port does successfully argue that such a relationship existed, Google can claim that its duty was limited – in the same way that a lawyer can break his confidentiality obligation to prevent a crime. The company could maintain that it complied by not revealing Port’s identity up until the point it was ordered to do so by the court.

Google’s terms of service state plainly: “You agree that Google may access or disclose your personal information, including the content of your communications, if Google is required to do so in order to comply with any valid legal process or governmental request.”

Without commenting on the case specifically, the company said in a statement: “We sympathize with anyone who may be the victim of cyber bullying. We also take great care to respect privacy concerns and will only provide information about a user in response to a subpoena or other court order. … At the same time, we have a legal team whose job is to scrutinize these requests and make sure they meet not only the letter but the spirit of the law.”

Indeed, in 2006, the company successfully fought a Department of Justice subpoena for millions of search queries, arguing it invaded user privacy. But Google has also come under criticism for other privacy issues, including the amount of time it retains a customer’s search queries and ill-defined protections in the pending legal settlement that would allow the company to sell access to millions of scanned books.

Matt Zimmerman, senior staff attorney at the Electronic Frontier Foundation in San Francisco, has voiced many of these concerns himself, but he, too, doesn’t see a valid legal argument for Port.

That said, he and other privacy advocates do worry about the legal precedent established, given the growing number of what are known as CyberSLAPP lawsuits. In such cases, targets of anonymous criticism file suits, often frivolous, just so they can issue a subpoena to a Web site or Internet service provider to uncover the identity of the authors and intimidate, embarrass or silence them. Cohen, in fact, has dropped her subsequent defamation suit, according to the New York Post.

“The notion that you can use the court as your personal private investigator to out anonymous critics is a dangerous precedent to set,” Zimmerman said. “I think the practical impact (of the Cohen case) is that litigious people will see this as a green light to try to out critics.”

Others think the outcome sends an appropriate and even necessary message for our age.

Andrew Keen, author of “The Cult of the Amateur: How Today’s Internet is Killing Our Culture,” said the perceived anonymity of the Internet amplifies our worst tendencies.

“It enables thoughtless, selfish people to think they have the right to say anything they want,” he said. “There’s no accountability, so everyone behaves like children.”

Keen says the court decision should serve as a stark reminder that a person is responsible for what they say, anonymous or in the open, online or otherwise. On the other hand, he worries that Port’s $15 million lawsuit could send the exact opposite message.

“She should have been so humiliated after being exposed that she went away and hid in a corner for a few years,” he said.

Copyright 2009 Hearst Communications Inc.