Thursday, August 27, 2009

Honest to Blog‽:: Watch What You Say in Web 2.0


Some of you may have heard about this case of a blogger {Rosemary Port-below left} being outed by an ex-model {Liskula Cohen-above left} after the latter sued Google to reveal the former's identity. The purpose of this is so Cohen could seek legal redress, in the form of a defamation lawsuit. Now, Port wants to sue Google for $15M for invasion of privacy. It turns out that the two are old hats in the Manhattan party scene and an old spat spilled into the courts, which may reshape Internet

free speech. Here's a Good Morning America {ABC} clip summarizing the story andhas an interview with Cohen::



A Manhattan, NY judge, Joan Madden, ordered Google to reveal the name of Port, using the following logic. Port alleged that her statements of using words like "skank," "skanky," "ho," and "whoring" to describe images of Cohen and her actions were in the realm of "trash talk" and that these statements are not factual assertions. The judge disagreed, citing dictionary definitions of "skank" and "ho" {I'm waiting for the day the Urban Dictionary is cited in a court document}, to assert that the statements suggest promiscuity, which can be a basis for defamation.

Wait a minute. So, were these Photoshopped images of Cohen engaging in lewd acts that would make Sasha Baron Cohen blush? Well, no. These were images of Cohen in party mode and were posted on Friendster and Facebook. D-Listed has an example and went as far to describe her as a "slut." Uh, oh. Gawker posted this campy image::



















I'm not sure which is more damaging:: the images or the epithets?

I think the judge was out to lunch on this one. She interpreted the blog as stating defamatory facts by examining the literal meanings of the text. I didn't get to see the blog, but it sounded tame compared to the "disses" one sees on 4Chan and perhaps the judge has an axe to grind against the Anonymous subculture. Something tells me, given what she wrote in her order, that she's unfamiliar with the strange ways of the Interwebs. In light of this, the EFF guidelines on defamation might have to change. While warning that everything is context dependent, these were deemed on the EFF site as likely to not be libelous::
  • Calling a TV show participant a "local loser," "chicken butt" and "big skank"
  • Calling someone a "bitch" or a "son of a bitch"
I'm not in the judge's head, but I think she thinks she's doing the right thing. She wants people to have a sense of responsibility for posting tasteless content that someone might deem as factual. Oddly, the blog in question, "Skanks in NYC," was live for quite some time. Nobody asked Google/Blogger to take it down. If I were the judge, I would wonder why Cohen wasn't trying harder to mitigate alleged damages to her reputation.

The NY Times ethicist {Randy Cohen} commented on the story, but I see him as trying to impose civility by limiting anonymity::
"Here is a guideline. The effects of anonymous posting have become so baleful that it should be forsworn unless there is a reasonable fear of retribution. By posting openly, we support the conditions in which honest conversation can flourish."
I have a problem with this. While I do realize that anonymous postings can turn the discourse space into the equivalent of a washroom wall, should we curb it in the name of civil discourse? I think he's missing the point by focusing so much on anonymity. Baleful communication, while arguably unpleasant, may be exacerbated by anonymity, but unpleasantness is far from a sound reason to limit speech, given Hustler Magazine v. Falwell. I think it was Clay Shirky who said ethicists are like ambulance chasers and the Internet provides rich terrain for post-hoc prescripts in areas that already have precedent. Oh, it's the Internet, let's reinvent the wheel. The NY Times is batting a thousand. Maureen Dowd gets it wrong too, finger-wagging at the cowards who shirk taking responsibility for their actions. Where do you draw the line? Given Barack Obama's lower approval ratings, are nasty "birther" bloggers potentially on the hook?

Was there enough evidence to warrant lifting the cloak of anonymity in order to gauge the merits of a libel case? I don't think so. While I don't agree with Port's method of "attack," I wonder if the judge would have tossed the case if she printed a "zine," rather than post a blog, given precedent in print media {based on Hustler Magazine v. Falwell}::



So, this was a case of a tiff getting out of hand. The MySpace suicide case is another example of bad behaviour going very awry. Both are examples of why new law to deal with cyberspace needs to tread lightly, as reinventing defamation and using terms-of-service violations to criminally prosecute users sets questionable precedent.

Currently, Liskula Cohen isn't pursuing a lawsuit, but wants an apology. Rosemary Port is wary of doing so and is likely mulling over her legal options. And a judge made the Internet in the US a bit murkier.

Twitterversion:: Honest to blog‽ Model #LiskulaCohen discovers ID of blogger who dissed her via Judge Joan Madden's order. Web 2.0 gets murkier.



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