If you refer to a professional model a "skank" and a "ho," that’s defamation, not mere opinion or hyperbole, and it is no less defamatory for having been said on a blog, a Supreme Court judge in New York ruled in In re Application of Cohen (N.Y. Sup. Ct. N.Y. Cty Aug. 17, 2009).
The object of the blog statements, professional model Liskula Cohen, sought an order to compel pre-action disclosure of information about the identity of the blogger from Google, Inc., the parent company of blog site Blogger.com. The court rejected the argument of the anonymous blogger that the court should find as a matter of law that a blog is a "modern day forum for conveying personal opinions, including invective and ranting," and that consequently the statements on the "Skanks of NYC" blog should be considered mere hyperbolic "trash talk."
The court also rejected the anonymous blogger’s argument that the court should follow other courts, such as the New Jersey appellate court in Dendrite International, Inc. v. Does (App. Div. 2001), in adopting a special standard for evaluating the merits of defamation actions against anonymous bloggers before granting requests for discovery directed to their identity. The court found that the provisions in New York CPLR 3102(c) governing requests for pre-action discovery "appear to address the constitutional concerns raised in this context." What is required, the court found, is a "prima facie showing of a meritorious cause of action," and a showing that the information sought is "material and necessary to identify the potential defendant or defendants."
As to Cohen’s cause of action, the court found that the terms used on the blog in captions describing or commenting on photographs of Cohen (which apparently were copied both from Cohen’s own Facebook site as well as from other, unauthorized sources) "could be understood to describe the petitioner as sexually promiscuous." Looking at the blog in context, the court found that the statements conveyed "facts" that were capable of being proven true or false. Finally, the court found that the terms used were "reasonably susceptible of a defamatory meaning," and not, as the anonymous blogger argued, "comparable in meaning to the word ‘jerk’ or any other loose or vague insult."
A note on Google’s position with respect to the requested discovery: The opinion recites that Google refused to supply the discovery at the request of Cohen’s attorney and stated it would not provide the information "unless required to do so pursuant to applicable law, regulation, legal process or enforceable governmental request." Google also and took no position on the substantive merits of Cohen’s application but objected on the ground that it was "overbroad, vague, ambiguously worded and unduly burdensome." The court notes that upon being served with Cohen’s application, Google notified the anonymous blogger at the e-mail address provided in the blog’s registration information, and the blogger appeared anonymously through counsel.