Knowing the Trollz’ Name—Using the Courts to Identify Online Defamers
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There is no question that the final name calling frontier is the internet--the world wide web of mean. No other invention since the Gutenberg press has made it as easy to cast stones from the safety of one's own home. And on the way to work, we even twitter our slurs.
Though the enemies of good character have found the net's weapons numerous, victims have found little to no solace due to technical, geographic, and legal constraints. It is all about as fair as a gun duel at a convention for the blind and the character casualties are mounting.
Undaunted, there are those that still resort to legal action in the hope of restoring their good name. After all, it’s still illegal to make defamatory comments even if the web wizard is out of harm’s way when behind the curtain (the Communications Decency Act (“CDA”) makes web operators nearly immune from the defamatory conduct of their users). So given the near absolute in its protection of web site operators, injured parties now seek the identity of the actual defamer. Yet the law on forcing the wizard to cough up names is as fluid as the "identities" of chronic net trollz. It's all in flux and up for grabs as the lower courts wrestle with concepts that will have global implications.
The recent New York Supreme Court decision in Ottinger v. The New York Journal News (for those of you not in the know the operation state court in new York state is referred to as "supreme") illustrates just how urgent, nascent, and malleable this conversation is. There the court hashed out some basic criteria in determining whether it had the authority to order the New York Journal news newspaper which hosts the "loHUD" blog to reveal the identity of users who had posted defamatory content.
The action was styled as a complaint against Jane and John Does, since the posters were anonymous. In February, the plaintiffs served the newspaper with a subpoena seeking the identities of the posters. The newspaper responded by trying to quash the subpoena. The court noted that higher New York courts had not yet ruled on the issue (the closest instance being a 2007 case against Google which didn't reach the issue because the statements at issue were deemed not defamatory).
Not easily deterred from heeding the call of justice, the court made reference to two cases from different jurisdictions. Relying on a pair of New Jersey and Delaware state court decisions, the court engaged in an analysis to craft a solution.
The analysis was:
1. With regard to the constitutional requirement that the allegedly defamatory party must have actually intended to defame a public figure, the court held that since the identity of the poster was not yet known it would not view this as an obstacle to obtaining the party’s identity;
2. The court then examined the sufficiency of the evidence provided by the plaintiff to determine if a prima facie (that means a cause of action on its face seems valid) defamation case had been established;
3. Among other things, since the plaintiff provided the exact statement made by the two Does, the court could conclude that the statements were prima facie defamatory;
4. Based on the above, the court concluded sufficient basis exists to order the disclosure of the identities of the parties that made the statements
This is not a miracle case that will revolutionize online defamation law. However it does provide a significant boost to the victims, by leveling the playing field somewhat. Moreover, this case and its peers will bolster the further development of case law in this realm. From my perspective this is a welcome thing as the "conversation" so far has been entirely one sided in favor of the trollz.
Though the enemies of good character have found the net's weapons numerous, victims have found little to no solace due to technical, geographic, and legal constraints. It is all about as fair as a gun duel at a convention for the blind and the character casualties are mounting.
Undaunted, there are those that still resort to legal action in the hope of restoring their good name. After all, it’s still illegal to make defamatory comments even if the web wizard is out of harm’s way when behind the curtain (the Communications Decency Act (“CDA”) makes web operators nearly immune from the defamatory conduct of their users). So given the near absolute in its protection of web site operators, injured parties now seek the identity of the actual defamer. Yet the law on forcing the wizard to cough up names is as fluid as the "identities" of chronic net trollz. It's all in flux and up for grabs as the lower courts wrestle with concepts that will have global implications.
The recent New York Supreme Court decision in Ottinger v. The New York Journal News (for those of you not in the know the operation state court in new York state is referred to as "supreme") illustrates just how urgent, nascent, and malleable this conversation is. There the court hashed out some basic criteria in determining whether it had the authority to order the New York Journal news newspaper which hosts the "loHUD" blog to reveal the identity of users who had posted defamatory content.
The action was styled as a complaint against Jane and John Does, since the posters were anonymous. In February, the plaintiffs served the newspaper with a subpoena seeking the identities of the posters. The newspaper responded by trying to quash the subpoena. The court noted that higher New York courts had not yet ruled on the issue (the closest instance being a 2007 case against Google which didn't reach the issue because the statements at issue were deemed not defamatory).
Not easily deterred from heeding the call of justice, the court made reference to two cases from different jurisdictions. Relying on a pair of New Jersey and Delaware state court decisions, the court engaged in an analysis to craft a solution.
The analysis was:
1. With regard to the constitutional requirement that the allegedly defamatory party must have actually intended to defame a public figure, the court held that since the identity of the poster was not yet known it would not view this as an obstacle to obtaining the party’s identity;
2. The court then examined the sufficiency of the evidence provided by the plaintiff to determine if a prima facie (that means a cause of action on its face seems valid) defamation case had been established;
3. Among other things, since the plaintiff provided the exact statement made by the two Does, the court could conclude that the statements were prima facie defamatory;
4. Based on the above, the court concluded sufficient basis exists to order the disclosure of the identities of the parties that made the statements
This is not a miracle case that will revolutionize online defamation law. However it does provide a significant boost to the victims, by leveling the playing field somewhat. Moreover, this case and its peers will bolster the further development of case law in this realm. From my perspective this is a welcome thing as the "conversation" so far has been entirely one sided in favor of the trollz.
