More on defamation, blogging and anonymity

By Legal Eagle

In the Liskula Cohen “NYC skank” case, Cohen successfully sued Blogger to get them to disclose the identity of an anonymous blogger who had defamed her by calling her (inter alia) “skankiest in NYC”.

Now we’ve apparently had a similar case in Australia. Self-help guru Jamie McIntyre launched the action in September this year after an anonymous blogger labelled him a “thieving scumbag”:

Mr McIntyre believes Google Australia is the only Australian company that knows who’s behind jamiemcintyreexposed.com because of its paid advertising relationship with the website, the application says.

The allegedly defamatory website is one of the first listings on a Google search for Mr McIntyre and countless efforts to find the owners, including hiring a private investigator, have been unsuccessful.

The Courier-Mail yesterday reported that McIntyre had been successful in his action, and that Google would be ordered to disclose the identity of the blogger.

There had apparently been an attempt last year to sue Google in respect of an allegedly discriminatory blog, but the action failed: see Gluyas v Google Inc (Anti-Discrimination) [2010] VCAT 540. The issue in that case was not the anonymity of the blogger, nor was the case brought in defamation. Mr Gluyas was a man who suffered from a form of autism, Asperger’s syndrome. He attempted to sue Google to force it to remove a blog called “hatingautism.com” which he alleged was discriminatory towards people who had autism. The blog had also allegedly named Mr Gluyas and reproduced certain of his own blog posts. The author of the blog was Mr John Best Jr of Londonderry, New Hampshire in the United States. Mr Gluyas brought his action before VCAT under the Equal Opportunity Act, and the VCAT Member said that the Equal Opportunity Act was not intended to regulate behaviour which occurred outside Victoria. In addition, the case could be distinguished from Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 because Google merely passively supplied a platform for the blogger to publish upon; it did not publish the material itself.

I suspect this will be a burgeoning area of interest as people attempt to regulate what is said about them online.

37 Comments

  1. Posted October 8, 2011 at 9:53 am | Permalink

    Online monikers give one a minor level of social anonymity, a bit like a performer wearing a mask: that’s about it.

  2. kvd
    Posted October 8, 2011 at 10:33 am | Permalink

    a burgeoning area of interest

    Lawyer-speak for the riches to come? 😉

    I think it’s important to remember (for all of us) that it’s only the medium which has changed – not the ‘rules of engagement’.

  3. kvd
    Posted October 8, 2011 at 12:41 pm | Permalink

    LE partly off-topic, but I am equally fascinated by the progress in this case for a number of reasons:

    – one of the councils involved is where I do over half of my business
    – it has been reported (can’t find where) that in the US one defence invoked by S&P in similar cases is SL’s much-admired First Amendment
    – whereas I have always considered the role of ratings agency to be more akin to that of auditor; expected to provide an independent, expert, facts-based assessment
    – so am now wondering if audit firms will be entitled to the “it’s my FA right to say what I wish” – perhaps via a rubber stamp, just to save time?

    And lastly, you mentioned your disgorgement of profits thesis the other day; I am still very keen to read that someday, if you would allow.

  4. Adrien
    Posted October 8, 2011 at 1:41 pm | Permalink

    I think it’s important to remember (for all of us) that it’s only the medium which has changed – not the ‘rules of engagement’.

    That’s true but the medium has changed, is changing, the social customs from which such rules of engagement come. So the rules of engagement will change somewhat.

    When you comment online it’s more like talking than writing and people feel free to spread poison behind your back as they do in life. I wonder, as people become more familiar with the consequences of slanderous publication (and monitored social media) will their real world habits change?

    Wouldn’t bet on it.

  5. Posted October 8, 2011 at 2:03 pm | Permalink

    I am suing Google Inc and Google AU in SA because they refused, over a period of 18 months, to remove serious defamatory statements that appear in a prominent position in a search for my name. This was the result of a ‘revenge attack’ on a notorious website that refuses to remove any content and due to its high page rank on Google is able to charge exorbitant fees to ‘rehabilitate’ reputations. These charges are documented in this US case and companies DO pay the website:
    http://docs.justia.com/cases/federal/district-courts/california/cacdce/2:2010cv01360/465955/96/5.html

    The damage that this website causes is reflected in the comments on this petition (mouse over ‘view’).

    http://www.gopetition.com/petitions/remove-rip-off-report-from-google/signatures.html

    Litigation was absolutely the last choice if I ever want to work again. I have to say that at a couple of stages during the last 2 years taking action to quietly go to sleep forever seemed to be a viable option. Luckily, I found a legal team who are not only highly experienced in defamation law but have a soul.

    Google removed some of the defamatory links and snippets within days of service to Google AU but the rest remain. Requests to remove the remaining defamation have been ignored.

    My lawyers are worth every cent and then some. They are saving my life. It is impossible to imagine the impact of this defamation. The stress of the last two years is hard to put in words. Living with the knowledge that in a few seconds a company worth $500 billion could take an action that could give one back their livelihood is soul destroying. I prepared three separate but detailed notifications and sent these multiple times to Google Inc and Google AU in the 18 months prior to filing proceedings. I received 2 ‘canned’ refusals.

    I have spent 2 years hiding from the world, unemployed, unemployable and avoiding social situations in order to try and lessen the humiliation. In fact, apart from my parents (who are elderly and do not know about the case), as we approach the end of 2011, I can say that the only meaningfull conversation during this entire year has been with my lawyers. I can now understand what it is like to be in solitary confinement in a prison, except that I did not commit a crime.

    I realise that developments in technology have and will always outstrip changes to the law but I ask the question of would a newspaper or TV station be permitted to act with impunity and publish serious false and/or defamatory statements about businesses and individuals on a daily basis? Why is it that we now have five media inquiries but the issue of cyber bullying by the search engines is too hard?

    The fact that this website does not remove material even if proven to be false is known to Google. However, allegedly defamatory statements on that website about Google execs were altered (to ensure it was not displayed in the search results) and criticism of Google products displays a disclaimer.

    I have spoken with some other victims and they have contacted Google AU, the AMCA, and the Feds about material published about themselves, their businesses and families. Google AU lied about their ability to facilitate the removal of links (just as they lied to me) while the government organisations just pass the buck.

    I am aware that defamation law is complex but It is pretty clear that snippets containing accusations of crimes (including those related to child abuse which appear on snippets relating to some of the other Australian victims) are defamatory or at least hold the potential to cause damage to a business or individual reputation.

    It is a simple procedure to remove a link. Google AU has removed defamatory links to some AU businesses and individuals upon request but it appears their criterion is whether not legal action is a possibility. In short, if the business is a law firm or cashed up they remove the links but requests from ordinary Australian businesses and individuals are ignored.

    I did a lot of research prior to seeking legal representation and this has turned out to be useful. However, research is what I do (or did) and small business owners, for the most part, do not have the time or skills to prepare a case. Because the law is untested in this area the reality is they would have to front up with a large amount of cash in order to litigate and this is impossible for most.

    I filed in February 2011. I have made it this far ONLY because of my lawyers. My initial approach was to try and litigate myself but it became clear very quickly that sobbing in front of a judge and trying to show he or she that Google can and do remove defamatory links is not the way to plead a case.

    I do not have the money to fund a trial. I am unemployed and living off what remains of my savings but I am hopefull that my litigation assistance application will be approved. Recent legal opinion is supportive.

    The legal system is how it is. I have to say that in my case the motivation was clearly NOT the attraction of the $s but a combination of an interest in the practice of law and social justice. How else would someone who is unemployed and unimportant have the opportunity to litigate for justice against a powerful company in an area of law that is untested?

  6. kvd
    Posted October 8, 2011 at 2:12 pm | Permalink

    will their real world habits change?

    That’s part of the problem, right there. There seems to be this tempting distraction in peoples’ minds that there really is more than one real world. It used to be called ‘escapism’ – which is fine, until it impacts on somebody else.

  7. Posted October 8, 2011 at 3:10 pm | Permalink

    The hatingautism blog is clearly a collection of rantings by a badly disturbed individual. I can understand why Mr Gluyas is offended (the moreso given that my son has Asperger’s) but it does leave you wondering, if we’re going to have legal sanctions against offensive speech, should there be an exemption for those who are mentally unbalanced?

  8. kvd
    Posted October 8, 2011 at 3:40 pm | Permalink

    [email protected] if I ruled the world I’d expend much more energy granting your family more strength, than diminishing that person’s responsibility. Maybe that’s a small ‘good’ that can come out of such unbalanced views? I hope so.

  9. Posted October 8, 2011 at 4:25 pm | Permalink

    kvd, that’s a very nice thought and gratefully received. I have to say that one thing that having a kid with a disability (I hate that term so much) has taught me is to look for what’s really going on with someone whose behaviour is objectionable. There is certainly a real tension between that and personal responsibility, but I’ve learnt that if I’m going to teach my son to be an able participant in his life, I have to understand the things which stand in his way.

  10. Posted October 8, 2011 at 4:54 pm | Permalink

    Thanks legal eagle :). I am luckier than most in this situation because I have got it to court. The purpose of my comment was, in part, to emphasise that it is not always about $$s for either plaintiffs or their legal representation – a point that you highlighted in your reply.

    I am afraid that one of the consequences of social and emotional isolation is a tendency for the flood gates to open occasionally (as was the case with my post) and this is one of the reasons I have started a blog on my case.

    My QC has said that this is a landmark case. Initially I thought that by filing proceedings it would resolve (as was the case in 2008 with the real estate agents) and certainly I just wanted it all to go away but even a non legal mind can see that there is a need for a precedent. I just wish it was not my case :).

    Google can and do remove thousands of links on a daily basis but the catch is that the webmaster has to put a code on the link. The refusal to remove material that causes harm to people is cruel.

    We are in court this week for argument and my lawyers say that we have a way to go but the situation is better than than this time last year.

    I am happy to keep you updated on the case. I have enjoyed reading skeptic lawyer over the last year and a half :).

  11. kvd
    Posted October 8, 2011 at 4:56 pm | Permalink

    Nick, I had a very close friend who died a couple of years ago, from a cancer completely unassociated with her dissociation. Highly (extremely) intelligent, and very well read, she taught me a lot about the difference between ‘dis’-abled and ‘differently’ -enabled, and I am the poorer for her being no longer in my life.

  12. Posted October 8, 2011 at 5:26 pm | Permalink

    Good points Janice. I empathise with you.

  13. Posted October 8, 2011 at 6:03 pm | Permalink

    Thanks Steve, one other point that may be of interest here is that Google places advertisements through adchoices on the pages containing the defamatory material about me and allegedly defamatory material about other Australians. The revenue is shared between Google and the webmaster.

    Some of those ads are for AU legal firms. In my case those firms are in my city (and it appears that at least one has commented on posts on this blog-although not this post). Of course the ads vary with the location of the viewer of the website.

    It is a bomb waiting to explode – not with respect to my case (I am unimportant) but these websites publish allegedly defamatory material about members of the Australian legal profession (I would never ever disclose their names or the names of the others defamed on these websites because it is just wrong) and publishes ads from AU law firms on these pages.

    So, my point is that these websites are not simply anonymous blogs. In fact there is a mountain of info about ripoff report and the other websites using that model including a statement that Google will not remove it unless a court orders this.

    I don’t think the defendants have quite realised that it is not just about someone who didn’t like what was written about them. I guess it will all come out eventually.

  14. Posted October 8, 2011 at 6:09 pm | Permalink

    I think Janice’s situation ties in with kvd’s comment about about the ‘rules of engagement’ not changing.

    There has been a concerted effort on the part of techie types to try to pretend that the internet is some sort of new frontier where the laws of intellectual property and defamation do not apply, and because the law is slow to catch up with technology, for a while this seemed to be the case.

    But eventually the law does catch up (I am put in mind of Windeyer J’s comment in MIM v Pusey: ‘in the rear and limping a little’), and we learn that the rules of engagement may have shifted a little (this would appear to be the case with intellectual property, especially music), but on the whole, the principles remain the same.

  15. Posted October 8, 2011 at 6:20 pm | Permalink

    Yes, and cases are popping up in Europe in which the ‘bots did it’ arguments has been successfully challenged. Interestingly Google run opposing arguments according to the side of the pond that hears the case – either it is all them and their right under ‘freedom of speech’ or ‘the bots did it’ as was the defence in the 2009 UK case and recently in Italy. It is fascinating to read their defenses-although for me, I guess it was more like reading the script to a horror movie.

  16. kvd
    Posted October 8, 2011 at 6:38 pm | Permalink

    ‘bots’ don’t do anything, except that dictated by a human. They take quicker dictation, but the origional utterance/instruction is still human.

    That may change someday, but as of now that would be a farcical defence.

  17. Posted October 8, 2011 at 6:45 pm | Permalink

    I would like to read your post do you have a link please.

    I will manage to get all the info on the blog over the next week or so and my wonderful tech is going to set up all the bells and whistles (and teach me how to use them) so I will sort a rss feed thingy and let you know. I was MIA when the tech chips were allocated and even the most obvious tech things are a nightmare. Even though most of the content is written it will take a bit of time to get it on the blog.

    That said I am more than happy to post updates. We have 31 imputations in the statement of claim and are in court this week for argument. I will attend and have promised to behave (difficult when the other side humiliates someone who believes they are viewed as disposable garbage).

  18. Posted October 8, 2011 at 6:59 pm | Permalink

    kvd, hi 🙂

    As I understand it there are 2 difficulties with litigating a case like mine; the first concerns the nature of the publication – i.e. what exactly did Google publish – the snippet or the whole document?

    The second appears to lie with the comprehension of how it works. Certainly the judgement in the UK case indicated that perhaps the judge did not have the all the information about how the SERPs on Google work. I had no idea about all this 2 years ago.

    I have to say that writing about this feels like coming out of the closet. For the longest time I wanted this to end with a whimper but I am not sure I am prepared for the bang.

  19. kvd
    Posted October 8, 2011 at 7:08 pm | Permalink

    Hello Janice. Look I’ve got to say that if you are in, or about to enter into, any form of legal action then the last thing you should be doing is making unscripted comments in any forum, even one so considered as I believe this one to be. That’s my 2c worth of calling a spade a spade.

  20. Posted October 8, 2011 at 7:19 pm | Permalink

    Yes, I’ll just second kvd and add that the first rule of litigation is to keep one’s powder dry.

  21. Posted October 8, 2011 at 7:31 pm | Permalink

    Oops I posted the comment on the algorithm post by mistake (made a cup of tea) so I will repost here (you may want to delete it on the other post)

    Can I link to the post in my blog please? I will have a list of resources and this would make a great addition. The comments also raised some interesting points about the response viz liability. I can tell you that the response to my removal requests differed to requests from important people and I know other Australians had similar experiences.

    I know there is no evidence that could be produced to prove that the imputations were true because I actually do not have the ability to commit the crimes let alone the inclination. I have lived a quiet life: I even pay my parking tickets on time. A defence has not been submitted in my case but my lawyers have some ideas about what that might be. I can’t discuss what they think but I am happy to flag when it has been submitted and on public record.

    BTW, might I say that this has been the most interesting Saturday night in a long time.

  22. Posted October 8, 2011 at 7:37 pm | Permalink

    Yes I realise about the comments but I am not going to say anything that is not true or that I would be ashamed for people to read.

    I kept quiet for 2 years 🙂 and part of the reason for writing the blog and joining twitter is that it will be indexed in a search for my name-at the moment all that can be found are links to the defamation and my professional work so at least it will be on record that the statements are false and I am doing something about it.

  23. Posted October 8, 2011 at 7:43 pm | Permalink

    Yes I realise about the comments but I am not going to say anything that is not true or that I would be ashamed for people to read.

    Even if this is true, it is better not to comment on the progress of a legal case except in a way vetted by one’s lawyers and on one’s own page. Feel free to let us know when you post updates, but it really is–no matter how strong one’s case may be–unwise to discuss things further in other forums. Your lawyers will be able to go into more detail as to why (we don’t provide legal advice on this blog).

  24. Posted October 8, 2011 at 7:45 pm | Permalink

    Sure and I can understand why 🙂

  25. Posted November 22, 2011 at 4:34 am | Permalink

    Well the story of my defamation case against Google hit the media. I did EVERYTHING I could for almost 2 years to mitigate this. It is INSANE that someone has to go to court in order to get a few obviously defamatory links removed.

    I am luckier than most because I have managed to get it this far and that is due largely to my lawyers.

    There is a need for a precedent at least with respect to these type of websites that admit to publishing false and/or defamatory material, charge thousands of dollars to ‘rehabilitate’ reputations and hide behind the CDA. I just wish I wasn’t the plaintiff.
    .
    Nonethless, I am in good hands. My QC and chief solictor took a defamation case to the high court awhile back and this one is potentially going in that direction.

    This is the case: Chakravarti v Advertiser Newspapers, 1998.

  26. Posted November 22, 2011 at 4:35 am | Permalink

    ooops forgot the links to the media;
    http://www.theaustralian.com.au/australian-it/google-being-sued-over-ripoff-site/story-e6frgakx-1226200582207

    http://www.smartcompany.com.au/legal/20111121-another-australian-sues-google-over-nasty-comments-posted-online.html

  27. Andy
    Posted January 24, 2013 at 5:18 pm | Permalink

    Gluyas v Best: 2013: $54K damages awarded.

    http://www.austlii.edu.au/au/cases/vic/VSC/2013/3.html

  28. Posted June 7, 2015 at 6:32 pm | Permalink

    Mr Gluyas was a man who suffered from a form of autism, Asperger’s syndrome.
    The above statement is defamatory not only towards Phil Gluyas, but also towards all Autistic people. You can’t assume that any of us suffer directly from our Autism since the suffering that most of us experience is very often inflicted on us by others because we are Autistic.

  29. Posted June 7, 2015 at 7:44 pm | Permalink

    [email protected] Not a lawyer, but that statement is not defamatory, as it does not adversely affect reputation. Also, parsing the difference between “suffering because of condition” and “suffering because of reactions to condition” is a remarkably fine level of distinction.

  30. Posted June 7, 2015 at 8:13 pm | Permalink

    It might be a ‘remarkably fine’ distinction from your point of view, but from the Autistic point of view it’s remarkably broad. But you’re right in one thing, the statement is only potentially defamatory as it stands. However, it becomes definitely defamatory once people are saying, “Oh, but you suffer from Autism, so you can’t possibly understand the truth of what we say about you. You are destructive, you are financial nightmares, and you destroy your parents’ marriages. If you can argue against these statements, you’re not Autistic enough to speak for truly Autistic people. If you can’t argue against these statements (because your parents prefer speech over meaningful communication), then you’re severe enough for our statements about you to be true (even when they’re not).” You know, that kind of pro-Autism stigma propaganda that Autism $peaks and AUDtism Awareness Australia put out about the people they claim to represent.

  31. Joe
    Posted February 17, 2016 at 10:38 am | Permalink

    I am very curious to get an opinion on something that strikes very close to home in this discussion of online defamation. On the website hosted by the individual who filed against Google, they have several defamatory(in my opinion, at least) articles written, as well as “idiot” awards, published personal information, and what appears to be outright libel. But besides the website there are several actions this individual has committed which I have questions about. Specifically regarding the legality of these acts.

    An individual approached a person whom had been a target of harassment; phone calls made to their place of work and defamatory statements made about them. This individual purported to be a Mediator, a registrar qualified by an Australian legal authority. This individual acquired emails or otherwise gathered in people who felt they had been libelled, harassed, stalked, or otherwise had personal issues with the person named in the case versus Google above.
    Several people provided their evidence of interactions with this person, and explained their views on where they thought they stood legally. Eventually someone became suspicious and the individual revealed that they were a personal friend of the aforementioned person, and they had taken everything provided by the people who posted on the site. The person named then wrote an open letter on this forum explaining how they had filled everyone, and could use their own evidence to help him in case of any legal action actually taken.

    Now my primary questions here are as follows, as I do not live in Australia and do not know any differences in our laws.

    First, is it a civil or criminal offense to impersonate a registrar? To my knowledge, they are appointed by an arm of the Australian legal system, and function as a legal official in their capacity as Mediators.
    Secondly, I read something in regards to information exchanged in mediation is not admissible to a court. Does this mean that any information obtained by an impersonator of a mediator would likewise be inadmissible?
    Thirdly, is there a statute of limitations on the crime(if it is a crime) of impersonating a registrar?
    Fourth, according to a piece of case law in Australia regarding libel online, it was ruled that the commission of a crime on the internet fell to the jurisdiction the victim resided in, if I recall correctly. I am unsure if I’m remembering the ruling exactly right, but would that mean the laws of another country would apply to determining the commission of a crime?

    I would be grateful for any advice, and I thank you for your time in reading my questions, and any thought you put towards these matters.

  32. CuriouserNCuriouser
    Posted July 29, 2016 at 4:28 pm | Permalink

    This is very interesting. My partner’s professional and personal reputation was absolutely smashed on Facebook, Instagram and via blogs where she was called (inter alia) “idiot” “racist” “white psychopath bitch” you get the idea.
    1. Certain individuals incited much of the response through their blogs and Facebook
    2. We have access to their addresses and businesses to direct service to etc (not so anonymous)

    Her $500k business investment is now lost because of this.

    Do you think there’s a point in visiting a lawyer to consider the evidence?

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