Sticks and stones…

By Legal Eagle

I seem to be building up rather a niche in posts on blogging, social networking, defamation and privacy law. Cases are springing up like mushrooms.

I’ve written before about the outing of “NightJack”, a policeman whose blog became immensely popular. It seemed to me that the development of outing pseudonymous bloggers was a rather sad one. However, in the latest case, it’s a lot more difficult to feel sorry for the person whose details were disclosed.

The case arose when an anonymous blogger maintained a blog called “Skanks in NYC” which was devoted to criticising a model named Liskula Cohen. It featured photos of Cohen under which were written words like  “skanky,” “ho”, and “whoring”. The few posts on the blog were definitely nasty, and included:

I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to Liskula Gentile Cohen. How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.

Yeah she may have been hot 10 years ago, but is it really attractive to watch this old hag straddle dudes in a nightclub or lounge? Desperation seeps from her soul, if she even has one.

The blog was hosted by Blogger, and Google had refused to hand over the blogger’s details. Cohen commenced legal proceedings in January this year to find out who was behind the posts in order to sue the blogger for defamation. On Monday, Judge Madden ruled that Google had to turn over the blogger’s IP address, which it duly did.

From comments made by Cohen to the New York Post, it seems that her main concern was whether the blog was written by a “friend” or someone she knew:

“I really hope it’s not somebody I know. I’m a human being. I bleed. I have feelings. When I saw that blog, it was awful. All I can say for this person is, I really truly hope that they have more in their life than this.”

The IP address provided by Google showed that the blogger was an acquaintance of Cohen’s who had attended some of the same parties and functions.

This case serves as a cautionary tale for those bloggers who have not thought about the issue of defamation. Anonymity will not necessarily save you from being sued for defamation. If you wouldn’t say it under your own name, don’t say it at all.

However, on another level, this case reminds me of the Ettingshausen case mentioned in our Defamation for Dummies post. There was some suggestion in the material I read on the Ettingshausen case that although Ettingshausen won the defamation case, it was a Pyrrhic victory, as the details of the case led to far more publicity and exposure of the defaming conduct than would otherwise have been the case.

Now, I’ve never heard of Liskula Cohen before. I wouldn’t have known her from a bar of soap. But now, forever more, her name will be associated with the words “NYC skank” for me.

I found some sensible commentary in the San Fransisco Chronicle on the issue:

…There is way too much nastiness on the Net hiding under the shield of anonymity. “Skanks in NYC” is a good example of this, but virtually every blog with any traffic suffers from the Anonymous D—— Commenter syndrome (fill in the blanks yourself). A lot of that would go away if people had to staple their own identities to what they actually said.

Yes, free speech is a good and powerful thing. But as a wise superhero once said, “with great power comes great responsibility.”

Allen Wastler, managing editor at CNBC.com, finds some hope in the ‘skank ruling’:

…I do get a little riled when “mainstream media” — by comparison to blogs — gets tagged for not being tough or hard on certain people or subjects. Hey, I could be the roughest, toughest bully Corporate America has ever seen … if I could be anonymous and not worry about threatening calls from lawyers.

But when you work for a newspaper, a TV network, or an established Net news site, you have to follow the journalistic rules: You back things up, with your identity and your reporting … or you get sued.

The flip side of this: Anonymous speech that really does need to be anonymous, like blogs by political dissidents in repressive countries. The tactics used by Liskula’s attorneys are not all that dissimilar to those employed by the Chinese government to force information about its political enemies out of Yahoo, Google, and others, except of course that her attorneys don’t have tanks.

How far this ruling will extend is unknown at this point. But I think the lesson here is be careful whom you attack on the Net, because they might be able to find you and fight back.

One long-term impact of all this is obvious, though: The search term “skank NYC” is now permanently anchored to Liskula Cohen’s name on Google. If she was trying to protect her reputation, she went about it in exactly the wrong way.

With any legal action you have to remember — what are you trying to achieve? The problem for Cohen is that she was trying to achieve multiple things. She was trying to find out who was behind the posts (and she succeed on that). She was trying to punish the person who was behind the posts (and she may well succeed on that). She was trying to protect her reputation, but by suing, she has given a far greater prominence to the defamatory comments than would otherwise be the case. I doubt I’d ever have heard of her otherwise. It’s a hard choice with this kind of a case.

(Hat tip: Heath Gibson and DEM)

Update

The blogger who wrote the New York Skank blog is now suing Google for breaching her privacy – a breach of fiduciary duty, no less. The plot thickens, or at least, the litigation thickens…

(Hat tip again to Heath Gibson)

14 Comments

  1. Joseph Clark
    Posted August 21, 2009 at 8:56 am | Permalink

    On the other hand she’s had a lot of exposure from this. Maybe that’s what she wanted.

  2. Jacques Chester
    Posted August 21, 2009 at 10:46 am | Permalink

    This sort of situation has been coined the “Streisand Effect” — resorting to legal means to suppress content on the internet causes it to become much more widely viewed and available.

    Of course it’s as old as anonymity. Unflattering graffiti has been around as long as buildings, for example.

    Two things about the Chronicle editorial.

    But as a wise superhero once said, “with great power comes great responsibility.”

    The wise superhero’s Uncle Ben said it, actually.

    But I think the lesson here is be careful whom you attack on the Net, because they might be able to find you and fight back.

    The actual lesson is that only folks who know how to use anonymous proxies will get away with it.

  3. jc
    Posted August 21, 2009 at 11:12 am | Permalink

    LE:

    CNBC is no real exemplar of any damned standards.

    The reason they getting stuck into blogger and anon comments is because they have been receiving a caning over recent months as a result of their appalling behavior with stock advice from such people like Jim Cramer. Recently a regular loud mouth CNBC’er has been attacking the stock trading blogs and some have responded in kind. So far the stock trading blogs are winning.

    Watch

    http://weakonomics.com/2009/07/03/dennis-kneale-of-cnbc-calls-the-recession-over-attacks-bloggers-not-smart/

    Which I call the Dennis Kneale fondles cats vid. (that’s he …Kneale… says someone accused him of)

  4. John Greenfield
    Posted August 21, 2009 at 7:53 pm | Permalink

    This is a tough one, but I’m going to go with the Court was wrong.

    1. I’m sure it must be upsetting if you are a hot, rich catwalk model to see the press report anything other than you are a goddess and genius, but luv, I said pet, I said luv, you are a fucking model, which by definition is one level closer to whore on the career value chain.

    2. It’s a sign you are successful that you have attracted this attention. Should the courts be involved in propagating this vocation?

    3. The psycho blogger does deserve some punishment for hiding their identities, and for attacking the model in a context where there has been/is no online interaction between the two.

    If “Shirley Schmidt” starts posting here that Legal Eagle does not know anything about Law, blah, blah, blah, we/you can rebutt that and the entire exchange stands, but “Skanks in NYC” did not allow that opportunity for rebuttal.

    4. I have wondered about rabid Culture War sites like LP that bang on and on about people like Keith Windschuttle saying the most extremely derogatory falsehoods about intelligence, and even things they’ve written.

    And then again in Oz we had a Leader of the Opposition stand up in parliament and call a female journo a “skanky ho”.

  5. Posted August 23, 2009 at 12:58 pm | Permalink

    Our female journo’s have a long illustrious history of being skanky and ho-ish John. First bought to the attention of the world by one Frank Sinatra, I believe.

    I think this case is narrow, anecdotal. Not really indicative of the way the interwebs is used by most people and in this instance there’s a straight, unadulterated, line between the blogger the content and the target.

    The blogger is a nasty, envious piece of work, and just having her unveiled must have provided the NYC skank with some level of satisfaction, which would be evident within their shared social circle, rather than to the rest of us. In essence, this is an interpersonal matter that, because of technology, has been played out globally. That’s the way it goes in the Current Era.

    Begs the question how anyone can be this stupid. The interwebs is neither temporary nor anonymous, unless, as Chacques alludes to, people feel strongly enough, or have the sense, to pony-up fifty dollars a year for some simple IP anonyimizer software.

  6. John Greenfield
    Posted August 23, 2009 at 4:01 pm | Permalink

    Caz

    So you advise the blogger to use that classic legal defence, “But your honour, she IS a skanky ho”!? 🙂

  7. Posted August 23, 2009 at 5:42 pm | Permalink

    [email protected] said “classic legal defence, “But your honour, she IS a skanky ho”!?

    So, what might be the response if the jurisdiction allows truth as a defence (rather than merely examining the extent of asserted damage).

    “This argument depends on:
    (1) whether or not an assertion of being a skanky ho causes damage or presents an advantage in the plaintiff’s career or in her social circles;
    (2) the generally-accepted meaning and overtones of the phrase “skanky ho”; and
    (3) whether the assertion by the defendant was true, that is, whether or not the necessary and sufficient attributes of skankiness and honess were exhibited by the plaintiff to such an extent as to warrant the assertion by the defendant.

    In recent years, it seems that notoriety is little impediment to, and may even enhance the career of those whose means of income depends on celebrity… and those in the modelling industry are certainly featured in the “celebrity” sections of various magazines rather than in the hard news sectons of more reputable journals.

    It is also clear that in various subcultures (such as some genres of modern entertainment that aggrandize themselves with the label “music”, such as rap), that phrases like “ho” are used generically to semantically indicate any female above the age of consent and with a degree of sexual desirability – a degree generally considered essential for models.

    Thus, the label “ho”, at least in isolation, could be seen as confirmation of the attributes required for employment as a model.

    Next, we must look at the label skanky, which has several meanings in youth subcultures, relating to a guitar, a certain Brazilian reggae band, a mode of dancing, or, in the sense indicated by the plaintiff, indicating a “disreputable woman” (which would make the defendant’s statements tautological), or indicating disgust or loathsomeness.

    Again, this depends on the subcultures the plaintiff moves in, and the relative advantages or disadvantages of skankiness in her chosen profession. It is certainlt true that many of more advanced years, or stronger religious persuasions, would consider the modern fashion industry, and it’s sexualization of females, generally loathsome, and therefore deserving of the term “skanky”.

    …. I’m sure more could be done along this line, but I lack the gravitas to do it well.

  8. Posted August 23, 2009 at 7:46 pm | Permalink

    John – I confess that when it comes to stories like this, I refuse to commit to memory the names of any of the individuals involved. In this instance I had ready access to a pejorative, err, nickname, for one of them. Wish I had an off the shelf nickname for the other one, although skanky cow comes readily to mind.

    And arh, yes, that defence sounds awfully tempting, given what I’ve read. 😀

    Dave – wouldn’t it come down to whether a “reasonable person” considers that a forty year old women regularly going out on the piss, publicly draping herself over young men in a sexually provocative manner, and so on and so forth, is behaving in a skanky and/or ho-ish manner, regardless of whether that behavior enhances or detracts from her reputation?

    I guess calling someone ugly, when they really are, is also not permitted.

    I once posted a picture of Rumor Willis and noted that she had an unfortunately potato-like head (poor girl), which was and is true. Fortunately neither she nor her people read my blog.

  9. John Greenfield
    Posted August 23, 2009 at 8:50 pm | Permalink

    Actually, now I think about it, given how recent and ubiquitous the phrase “skanky ho” has become, I dare say, there would not be many judges familiar with its popular use.

    To me, when I hear that , and cognate phrases, I think of some 250 lb drag queen with blue eye shadow on Jerry Springer using it about the 30 year old bottle-blonde white chick who has 7 kids to 6 fathers. It simply does not register as particularly nasty. 🙂

    If I were the judge, I would peer over the bench, and ask “I say, Ms. Naomi Campbell, in order to hurry along the proceedings, I must say you DO look and behave quite skanky, what say you in your defence”? 🙂

  10. John Greenfield
    Posted August 24, 2009 at 1:18 am | Permalink

    LE

    When I was a kid at school, calling a girl a “slut” was the worst crime imaginable. If the caller was another girl, a hair-pulling catfight was on at recess. If the caller was a guy, a visit from the alleged sluts brothers/cousins was inevitable.

    Nowadays who – man or woman – does not use the word ‘slut’ affectionately? A few months ago a recently divorced 40 year old girlfriend of mine sheepishly bragged to me on the phone about the one stand with a 28 year old guy she met at a mutual friend’s BBQ. “You Slut” I said, and she said in quite a chuffed tone, “yeah, I am, aren’t I. Hold on, mum’s on the other line I’d better tell her”! 🙂

  11. Caz
    Posted August 24, 2009 at 8:11 pm | Permalink

    Meanwhile, Courtney Love’s lawyer has filed a motion to toss libel suit bought by a fashion designer who Love trashed via Twitter and other social networking sites. Her lawyer says the case would violate Love’s right to free speech. The only real difference in this case and the dueling-skanks is that neither individual was anonymous from the get-go.

    L.E – while awfully off topic, Rumor Willis, while certainly not the worst of the celebuspawn, has been a mild fascination for me, firstly stemming from some profoundly stupid quotes (such as “I’m used to be famous now, everyone in the world knows me” … or some such blithering nonsense); secondly stemming from her deeply unfortunate face, including the fact that if not for her parents, she has a ‘look’ that would have done well working at WalMart. The second pre-occupation set me on a very short journey to figure it out, and this is what I discovered: mother Demi, while undeniably attractive, has very small facial features, all of them – eyes, nose, mouth – are little; Rumor has her mother’s looks, not Dad’s, the features are all mum’s but when placed on a much larger area of face the outcome is, well, less than traditionally attractive. Basically, dad’s head, mum’s features: hideous combination.

    I can’t believe that blogger-skank is suing Google for $18M.

    “This has become a public spectacle and a circus that is not my doing.

    By going to the press, [skanky-ho] defamed herself

    I feel my right to privacy has been violated”

    So claims blogger-skank.

    Man, you can’t make up shite like this.

    (No chance of winning her case.)

5 Trackbacks

  1. By skepticlawyer » Bloggers, journalists and the law on January 15, 2010 at 6:33 pm

    […] for example, but don’t have ads which lead to payment?) I wonder about the blogger who made defamatory comments to the effect that a particular model was called a NYC skank. If you abolished defamation, […]

  2. By skepticlawyer » Offence, the Net and the Law on March 17, 2010 at 5:17 pm

    […] baby named Lindsay) or the Liskula Cohen “Skank NYC” case (post here). In the end, I doubt I would have known about either piece of defamation if Lohan or Cohen had not […]

  3. […] interesting to see how these cases are banking up. I posted on the case of Liskula Cohen last year, a model who successfully sued to find the identity of a blogger who called her […]

  4. […] the Liskula Cohen “NYC skank” case, Cohen successfully sued Blogger to get them to disclose the identity of an anonymous blogger who […]

  5. By Skepticlawyer » The Streisand Effect on January 17, 2012 at 3:54 pm

    […] Liskula Cohen: The New York model Liskula Cohen sued Blogger to obtain the identity of the author of a blog called “Skanks in NYC” which was devoted to criticising Cohen and certainly contained some very unpleasant comments about her. […]

Post a Comment

Your email is never published nor shared. Required fields are marked *

*
*