August 20, 2009

Harder for Public Person to Prove Defamation Says Matthew Albaugh

A blogger who used an anonymous Google blog to launch a series of name-calling attacks against a New York model may not remain anonymous much longer, TechNewsWorld reported in its story "Name-Calling Blogger Tests Limits of Online." A judge ordered Google to identify the blogger to the model, who may decide to sue the individual for defamation, or just out the person to the general public.

Someone, somewhere did not like Liskula Cohen, a model in her 30s who lives in New York. A blog was launched from Google's Blogger platform, apparently devoted to maligning her, complete with uncomplimentary photos, according to the story.

Cohen complained to Google, according to media accounts, and requested the name of the poster. Google initially refused but was then ordered by a judge to hand over the name. Cohen reportedly knows this woman, albeit distantly. Now, the ball is in her court. She can sue for defamation - and probably lose, at least according to attorneys contacted for this article by TechNewsWorld. She could also publicly name the blogger, who could find herself on the receiving end of the blogosphere's wrath.

One fact not highlighted in the episode is Cohen's status as a public person. Generally speaking, it is much harder to prove defamation when you are a public official, public figure or limited-purpose public figure, Matthew Albaugh of Baker & Daniels told TechNewsWorld.

Such plaintiffs "must establish that the defendant acted with actual malice with clear and convincing evidence. If the plaintiff is a private person, the plaintiff generally must only show that the defendant acted negligently. If the private person wants to recover punitive damages, he or she must show evidence of actual malice," Albaugh said.

In this case, Albaugh said, it is quite likely that Cohen would be deemed a public figure, or at a minimum a limited-purpose public figure. "As such, she'd need to demonstrate that the blogger acted with actual malice in making the crude statements about her," Albaugh said.

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