Facts
- Liskula Cohen, a professional fashion model, was the sole subject of an anonymous Blogger.com site titled “Skanks of NYC,” consisting of five posts published the same day.
- The posts used pejorative terms and included statements implying Cohen was sexually promiscuous, unclean, and dishonest, accompanied by photographs of Cohen.
- Cohen alleged the statements were false, malicious, impugned her chastity, and harmed her reputation and work as a model (defamation per se).
- Cohen sought identifying information for the blogger (e.g., email and IP-related data) from Google/Blogger; Google declined to produce it without a court order.
- Cohen filed a special proceeding for pre-action disclosure under CPLR 3102(c) to identify the blogger so she could bring a defamation action.
- The anonymous blogger appeared through counsel and opposed disclosure, arguing the blog content was nonactionable opinion, rhetoric, and hyperbole.
Issues
- Under CPLR 3102(c), did Cohen show a prima facie meritorious defamation claim sufficient to justify pre-action disclosure of the anonymous blogger’s identity?
- Were the blog statements, viewed in context, reasonably susceptible of defamatory meaning and understood by a reasonable reader as assertions of fact rather than protected opinion or hyperbole?
Decision
- The court granted the petition for pre-action disclosure.
- It held Cohen made a sufficient prima facie showing of defamation, including defamation per se.
- It rejected the argument that the blog’s language and tone rendered the statements nonactionable as a matter of law.
- The court ordered Google to disclose information sufficient to identify the anonymous blogger, including registration and other identifying information.
Legal Principles
- CPLR 3102(c) permits pre-action disclosure to aid in bringing an action, including to identify prospective defendants, but the petitioner must show a meritorious cause of action and that the discovery sought is material and necessary, not a fishing expedition.
- A statement is defamatory if it tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, or induces an evil opinion of the person in the minds of right-thinking persons.
- Defamation per se includes statements imputing unchastity to a woman and statements that harm a person in their trade, business, or profession.
- Whether speech is actionable fact or protected opinion depends on the specific language used, whether it is verifiable, and the full context and broader social setting; the question is how a reasonable reader would understand the communication.
- Anonymous speech interests do not bar disclosure when a plaintiff makes a prima facie showing that the anonymous speaker engaged in defamatory speech and the identity information is necessary to pursue the claim.
Conclusion
The court compelled Google to unmask an anonymous blogger because the blog’s accusations, viewed as a whole and in context, could be read as verifiable factual assertions that impugned Cohen’s chastity and professional reputation, satisfying the prima facie merit requirement for pre-action disclosure under CPLR 3102(c).