Commentary

Appellate Court Rules In Favor Of Online Anonymity

Last year, vacation resort chain Sandals unsuccessfully attempted to discover the identity of a Gmail account holder who wrote a string of emails criticizing the company. Sandals claimed that the emails libeled the company by suggesting its hiring practices were racist.

The messages -- sent under the apparent pseudonym John Anthony, from the address jft3092@gmail.com -- contained statements like "MENIAL-LOW PAYING JOBS FOR JAMAICANS; HIGH PROFILE LUXURY-STYLE JOBS FOR FOREIGNERS!" and "MAKING BEDS-MASSAGES-JAMAICAN JOBS!" Another said that Sandals "does not even have a single dark-skinned Jamaican on its board."

New York Supreme Court Justice Alice Schlesinger disagreed that Sandals was entitled to that information. She ruled that the emails weren't defamatory because they were opinions, not assertions of facts. Only assertions of verifiable facts can be libelous.

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Unwilling to let the matter drop, Sandals appealed Schlesinger's ruling. Last Thursday, a New York appellate court decided against the resort chain. The appeals judges said that the company didn't adequately allege defamation because it didn't say that its business reputation was harmed by the emails or that any information in the emails was false.

The judges could have upheld Schelsinger's ruling for those reasons alone. But what's interesting about the ruling is that the judges went further and said that emails about Sandals should be interpreted as opinions because they appeared online and were authored anonymously.

"The culture of Internet communications, as distinct from that of print media such a newspapers and magazines, has been characterized as encouraging a 'freewheeling, anything-goes writing style' " the appellate court wrote. "The observation that readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts, specifically addresses posted remarks on message boards and in chat rooms. However, it is equally valid for anonymous Web logs, known as blogs, and it applies as well to the type of widely distributed e-mail commentary under consideration here."

That language could affect a wide swath of unmasking cases, given that virtually all stem from online statements by anonymous authors. In fact, the decision suggests that the well-publicized Liskula Cohen matter might have turned out differently had the case been appealed. Cohen, a model who once appeared on the cover of Australian Vogue, filed suit in an attempt to learn the identity of the author of the unflattering blog Skanks in NYC.

Cohen alleged that the blog defamed her, and the trial judge ruled in Cohen's favor. New York State Supreme Court judge Joan Madden agreed with Cohen that the blog potentially defamed her by presenting her as promiscuous. Madden specifically rejected the blogger's argument that the comments were opinion and hyperbole.

The decision sparked much commentary, including a critical law review article by New York Law School student Eirik Cheverud. While the appellate division doesn't outright express disagreement with Madden's order unmasking the author of the Skanks blog, the judges approvingly reference Cheverud's piece for the proposition that online statements are taken less seriously than assertions made in other media.

That's a clear a signal as any to trial judges that they should proceed with caution when faced with requests to unmask online speakers.

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