Cohen v. Google

Citation: Cohen v. Google, Inc., Index No. 100012/09 (N.Y. Co. Aug. 17, 2009).

Factual Background
Google owns and operates Blogger.com, a free service that hosts users’ blogs. Petitioner, Liskula Cohen, alleges that on August 21, 2008, five different posts were published on Blogger under the title “Skanks of NYC” at http://skanksnyc.blogspot.com, which included “photographs, captions to the photographs, and commentary.” Cohen brought this petition seeking pre-action discovery claiming defamation for statements containing the words “skank,” “skanky,” “ho,” and “whoring.” Her petition alleges defamation per se claiming the statements impugned her chastity and negatively reflect on her business as a full-time model and that she would be a plaintiff in a defamation action if she could identify the person or persons who created the blog and published the posts about her.

Respondent Google did not have any substantive opposition to the motion (petitioner sought to obtain the information from Google informally but Google declined in favor of petitioner obtaining a court order); using the email provided during the registration of the blog in question, Google notified the “anonymous blogger” of the special proceeding. Non-party “anonymous blogger” appeared anonymously through counsel and submitted opposition papers.

“A petition for pre-action discovery should only be granted when the petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.”1 “As a general rule, ‘the adequacy of merit rests within the sound discretion of the court.’”2

The elements for a cause of action for defamation “are a false statement, published without privilege or authority to a third party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se.”3

The anonymous blogger challenged the petition asserting that the statements, appearing as captions on the blog in question, were 1) posted by petitioner herself (according to the anonymous blogger’s attorney the images had been posted by the petitioner on various social networking sites such as Facebook), 2) “non-actionable opinions and/or hyperbole,” and 3) that no reasonable viewer of the blog would perceive the statements referring to petitioner as verifiable statements of fact. According to the blogger, the words “skank” and “ho” are used in a “loose hyperbolic” manner, and “have become a popular form of ‘trash talk’ ubiquitous across the Internet . . . and should be treated no differently than ‘jerk’ or any other form of loose and vague insult that the Constitution protects.”

Based on the above standards the court ruled that petitioner was entitled to pre-action discovery as she had “sufficiently established the merits of her proposed cause of action.” To determine whether a statement expresses fact or opinion is a question of law for the court based on an analysis of 1) whether the language at issue has an identifiable and readily understood meaning, 2) whether the statements are capable of being proven true or false, and 3) whether the statements taken as a whole within the context give the impression of being opinion rather than fact. The court determined that words such as “skank” and “ho” are very easily definable and have readily understood meanings both as slang and words in the English language. Additionally, because the captions denoting sexual promiscuity were attached to sexually provocative photographs, the impression of an average viewer would have been that the statements were factual and verifiable.

The court also rejected the blogger’s argument that the Internet serves as a modern day forum for conveying personal opinion and statements such as those found on his blog cannot be reasonably understood as factual assertions. Google was ordered to provide petitioner with information as to the identity of the Anonymous Blogger(s).

References 1 – Matter of Uddin v. New York City Transit Authority, 27 AD3d 265, 266 (1st Dept 2006) (quoting Holzman v. Manhattan & Bronx Surface Transit Operation Authority, 271 A2d 346, 347 [1st Dept 2000]). 2 – Matter of Peters v. Southeby’s Inc., 34 AD3d 29, 34 (1st Dept 2006) (quoting Mediavila v. Gurman, 272 AD2d 146, 148 [1st Dept 2000]). 3 – Dillon v. City of New York, 261 AD2d 34, 38 (1st Dept 1999).