Last week, a judge ordered Google to reveal the name of a blogger who may have defamed Vogue model Liskula Cohen. Now Rosemary Port, whose "Skanks in NYC" blog suggested Cohen was a "skank" and a "ho" among other potentially negative descriptions, is now turning a little of her "frank in NYC" wrath on Google.
You may be moved a little by Port's logic. Firstly, she told the New York Daily News that it was Cohen who caused all the fuss: "Before her suit, there were probably two hits on my Web site: One from me looking at it, and one from her looking at it (...) That was before it became a spectacle. I feel my right to privacy has been violated."
It is an interesting argument, one that perhaps suggests a future in the law, should a fashion career not satisfy.
And it seems that Port intends to test the boundaries of the law by attempting to sue Google. The 29-year-old student at the Fashion Institute of Technology told the Daily News that she will launch a $15 million suit against the entirely non-skanky company from the Left Coast (the blog was hosted on Google's Blogger).
"When I was being defended by attorneys for Google, I thought my right to privacy was being protected," she told the News.
However, once the judge made her order, things changed. "I would think that a multibillion dollar conglomerate would protect the rights of all its users," said Port. Her attorney, Salvatore Strazzullo, told the Daily News that Google "breached its fiduciary duty to protect her expectation of anonymity."
Strazzullo will invoke the Founding Fathers in his argument, he said. And it is an interesting argument, one that perhaps extends beyond the blogs Google hosts to every area of personal information that the company holds. What should anyone who uses Google's services reasonably expect from the company in terms of privacy?
It will be more than a little pulsating to see where the courts might bang their gavels on this issue. But perhaps the saddest part of this strange episode is the reason why Port and Cohen allegedly fell out. According to the Daily News, Cohen said some not-so-nice things about Port to her ex-boyfriend. Oh, ladies. Is it really worth getting all this publicity, all this darned fame, over something that might have started as a little tittle-tattle?
I know that some people have pleasures that are not entirely innocent.
They go to sites such as What Would Tyler Durden Do? or Dlisted to read the occasionally besmirching remark aimed at those more famous, wealthy, and beautiful than themselves.
Sometimes, the bloggers behind these bastions of moral sure-footedness prefer to remain anonymous. However, a court ruling on Monday in New York might change that.
Liskula Cohen, a Vogue cover model, won an interesting case against the nameless blogger behind the erudite site Skanks in NYC.
Judge Joan Madden ruled that Cohen is entitled to know the identity of the blogger as phrases such as "psychotic, lying, whoring...skank" might possibly be defamatory.
Initially, Cohen sued in January, asking the court to order Google, which was host to the site on Blogger, to reveal its author's identity.
In this proceeding, the judge declared that Google must inform the blogger that he or she should probably get a lawyer, as there is a risk of unmasking.
The blogger's lawyer claimed that the views expressed were "hyperbole" and that blogs "have evolved as the modern-day soapbox for personal opinions."
The lawyer also offered the view that blogs have "mere venting purposes, affording the less outspoken a protected forum for voicing gripes, leveling invective, and ranting about anything at all."
I wasn't entirely aware of that.
And the judge seems to have looked somewhat askance at these arguments. Especially, it seems, when she saw that the hyperbolic comments were placed near somewhat-provocative pictures of the model.
Judge Madden declared that placing such epithets as "ho" and "skank" next to these images might create "a negative implication of sexual promiscuity."
It is not for me to say why anyone would wish to create a blog called Skanks in NYC (the blog was taken down in March).
However, it will be interesting to see, as this lawsuit progresses, just what implications it might create for those who choose to blog anonymously and call people rather rude things.
In response to criticism that small business were largely powerless against negative reviews on Yelp, the community reviews site has rolled out a feature that allows business owners to respond to reviews of their establishments, whether good or bad.
Yelp CEO Jeremy Stoppelman wrote in a company blog Thursday that the free feature was rolled out Wednesday:
Last night we rolled out a highly anticipated feature that allows business owners to publicly comment on their reviews. Already we've seen a number of sharp-eyed businesses make good use of this new functionality to provide additional context around specific reviews for the benefit of consumers and yelpers alike.
The service was created to give business owners a way to provide constructive feedback in a public forum, instead of the previous system, which required businesses to correspond with users through private messages, Yelp told its " elite users" in an e-mail earlier this month. The feature is expected to help quell some business owners' biggest complaint about the social reviews site--that businesses had few avenues to respond to negative reviews or unfounded claims.
Business owner comments will be given a more stringent review than user comments, and Yelp promises to remove any owner-written comments deemed disparaging, attacking, or pandering with some sort of incentive. The company has put up a guide that clarifies what businesses should and should not do with the new system.
Before business owners can use the comment feature, they must claim ownership of the business at biz.yelp.com, Stoppelman wrote.
The new feature is being introduced in the wake of some business owners resorting to libel lawsuits against former clients. In January, a San Francisco chiropractor filed a lawsuit against a patient who wrote a negative review of him on Yelp, but that suit was quickly settled.
A similar lawsuit soon followed in which a California dentist sued a couple, claiming libel over a negative review posted to Yelp's site. Yelp was named as a defendant in that case, but the plaintiff's attorney indicated at the time that the reviews site would likely be dismissed as a defendant because Web sites are protected against liability for content their users post.
An example of a business owner responding to a negative review on Yelp.
(Credit: Yelp)A California dentist is suing a couple for libel over a negative review on Yelp, according to a report in the San Francisco Chronicle.
In the suit filed last month in Santa Clara County Superior Court, Foster City dentist Yvonne Wong is asking for damages over allegedly defamatory comments made by Tai Jing and Mia Ma of Los Altos about the care given to their son. The review by "T.J." said the dentist had used mercury in fillings and had given the boy laughing gas, making him "light headed."
Yelp is also named as a defendant, but Wong's attorney, John Terbeek, said he will probably dismiss those charges because Web sites are protected against liability for content their users post.
Another case in which a chiropractor sued a San Francisco man over a negative Yelp review was settled last week. Plaintiff Steven Biegel and defendant Christopher Norberg settled the libel suit, but terms of the agreement were not disclosed. Norberg had criticized Biegel's practice of billing insurance companies at a much higher rate than he bills patients and said he had found a different, "honest" chiropractor.
"Assuming that Chris was honest in describing his experiences with Dr. Biegel, he would likely have prevailed in this case," Yelp Chief Executive Jeremy Stoppelman wrote in a blog posting after the case was settled on Friday. "In addition, we think that the very act of suing a patient over a review (in light of the many other positive reviews that Dr. Biegel receives on our site) is customer unfriendly and may affect his business going forward."
Stoppelman adds that "It is worth noting that in 4 years of operation no Yelp user has been successfully sued and such cases are extremely rare."
The lawsuit filed by a San Francisco chiropractor against a patient who wrote a negative review of him on Yelp was settled on Friday, according to the attorney for the defendant.
Christopher Norberg reached a settlement with the chiropractor who sued him for libel over a negative Yelp review.
(Credit: Christopher Norberg)"This case was settled with the mutual satisfaction of both parties," said Michael Blacksburg, who represented patient Christopher Norberg. The terms of the settlement agreement are confidential and the March trial date will be canceled, he said.
The case had spurred debate over how to best balance the rights of consumers to express themselves on community forum sites with the rights of businesses to protect their reputation.
Shortly after the court-required mediation hearing was completed Friday afternoon, Norberg replaced an earlier Yelp posting in which he said he had been sued by chiropractor Steven Biegel with a short posting that reads:
"A misunderstanding between both parties led us to act out of hand. I chose to ignore Dr. Biegel's initial request to discuss my posting. In hindsight, I should have remained open to his concerns. Both Dr. Biegel and I strongly believe in a person's right to express their opinions in a public forum. We both encourage the Internet community to act responsibly."
Norberg was advised by his attorney to refer all requests for comment to his lawyer. Calls to Biegel and his lawyer, Eric Nordskog, were not immediately returned on Friday.
"I'm really glad for both of them that they can put this dispute behind them," said Blacksburg. "I hope this begins the public conversation on how to communicate using the resources of the Internet."
Biegel sued Norberg for defamation nearly a year ago over a posting in which Norberg had suggested that Biegel's billing practices were dishonest because he had billed Norberg's insurance company an amount that was four times what he had quoted to Norberg for two office visits in 2006, according to court documents. Biegel had allegedly told Norberg that the price differential was due to the additional time and effort his office spends dealing with the insurers.
Biegel's lawyer contended that Norberg's comments on Yelp were statements of fact and thus libelous. Blacksburg maintained that the comments were opinion and therefore were constitutionally protected speech.
Norberg replaced an earlier review on Yelp with this posting after he and his former chiropractor settled the defamation lawsuit.
(Credit: Yelp)
Christopher Norberg, defendant in a lawsuit accusing him of libel for a negative review he posted on Yelp.
(Credit: Christopher Norberg)San Franciscan Christopher Norberg went to a chiropractor after being injured in a car accident in 2006. After a disagreement with the chiropractor over billing, he posted a negative review of the business on Yelp suggesting that the doctor was dishonest. Now he is facing a defamation lawsuit that could chill self-expression on the popular gripe Web site.
"If Christopher loses then anyone on Yelp who writes a negative review better be careful," said Michael Blacksburg, an attorney representing Norberg. "This strikes at the heart of Yelp's business model and other Web sites that provide a bulletin board for people to state what they think of businesses in their community."
"This is clearly Christopher Norberg's version of conversations with the doctor relating to a billing dispute and his opinion of how the doctor was behaving," Blacksburg said on Tuesday. "This is clear opinion that falls squarely within constitutionally protected speech."
Eric Nordskog, the attorney for chiropractor Steven Biegel, said the case comes down to whether Norberg's comments are considered statements of fact or opinions.
"Dr. Biegel has no problem with people expressing their views and opinions about his service," Nordskog said. "But there is a line where if someone, even on Yelp or on the Internet, publishes a false statement of fact as opposed to an opinion, then that person can and should be held responsible for their words."
Norberg, a 26-year-old custom-furniture builder, was advised not to discuss the case publicly, but has a Web site with related information. Biegel did not return a call seeking comment.
The two sides are scheduled to sit down for court-required mediation on Friday, but Norberg said he isn't optimistic that the case will be resolved then. A March 2 trial date is on the San Francisco Superior Court calendar.
The lawsuit, filed February 25, 2008, alleges that Biegel has suffered loss of reputation and business as a result of the review and seeks punitive damages. According to the lawsuit, the review allegedly contained false statements and inaccuracies that suggested Biegel was dishonest and accused him of fraudulent billing practices.
Billing dispute at center
Norberg was treated twice by Biegel before a friend of his told him he had had billing problems with Biegel's office, he wrote in his review. Norberg, who said he did not have medical insurance, was not asked to pay for the visits because Biegel's office said it would try to bill his auto insurance company instead, the review said. Even though the insurance company refused to pay, Norberg did not initially receive a bill from Biegel, he said.
In the meantime, Norberg began getting treatment from another chiropractor who suggested he sue the driver of the car that hit him, Norberg's review said. Norberg eventually settled the case, the review said.
After learning that Biegel's bill to the auto insurer was $550 instead of $125, which was the amount quoted for two visits, Norberg called Biegel, his Yelp review said. Norberg said that Biegel demanded he pay $550 during that phone call, but then said he would waive the fee entirely, according to the review. Biegel later called Norberg and explained that his office bills insurers at a higher rate than patients who pay for service directly because of the higher office costs in dealing with the paperwork and delays in receiving payment, court documents said.
Biegel's office then made a call to Norberg's auto insurance company and learned about the settlement and then called Norberg and demanded he pay $125, the lawyers said. Norberg paid the bill and posted a review of Biegel with a one-star rating on Yelp on November 16, 2007.
"I didn't feel comfortable with their tactics," Norberg wrote in his review after earlier writing that the office had been aggressive in trying to get him to come back for treatment before the billing dispute. Biegel "couldn't give me a straight answer as to why the jump in price...He called me back to cover his ass...(and says) he runs a business and would stick it to insurance companies," the review said.
"I don't think good business means charging people whatever you feel like hoping they'll pay without a fuss. Especially considering that I found a much better, honest chiropractor," Norberg wrote at the end of his review.
In a letter sent to Norberg dated December 7, 2007, Biegel asked Norberg to remove the review, saying it "unjustly characterizes me as unethical and dishonest" and attributed the dispute to a misunderstanding of his office procedures.
"I did not do anything unethical or illegal in our entire dealings," Biegel wrote. "It has never been my policy or intention to take advantage of an individual or insurance company."
On January 8, Norberg got a letter from Biegel's lawyer threatening him with a lawsuit over the review and two days later Norberg removed the review and rating from the site. The following month, Biegel sued.
Biegel, who was a "sponsored" advertiser on Yelp and encouraged customers to write reviews on the site, received about as many referrals per month from Yelp while the review was up as before, but fewer after the lawsuit was filed, Blacksburg said, citing Yelp documents.
A Yelp spokeswoman said she did not know of any other cases in which a business sued a Yelp user over a negative review.
"We won't comment on specific litigation, but in general, lawsuits like this are pretty uncommon," Yelp spokeswoman Stephanie Ichinose wrote in an e-mail.
"Most businesses engage constructively with customers who haven't had a good experience," she wrote. "When that doesn't work, they recognize that they can't always make one hundred percent of their customers happy one hundred percent of the time, and don't risk the huge expense and potential negative publicity that comes with suing one of their customers."
Accusing a business owner of unethical conduct would constitute defamation unless it is true, said Aaron Morris, an Internet defamation attorney in Santa Ana, Calif. However, if the defendant can successfully prove that posting the statement was a matter of public good then the plaintiff would have to show malice and that the defendant knew the statement was false or had reason to believe it was false, he added.
"You can have something that would normally constitute defamation but if it's a matter of public interest it is entitled to protected status," Morris said. "Some courts will say that if you are posting it in a forum where people would be interested, they are going to Yelp specifically to find out about the doctor...then it enjoys a heightened level of privilege."
Not much legal precedent has been set on Internet defamation involving consumer review Web sites. Two similar cases decided in August in California had conflicting outcomes. In European Spa v. Kerber, the First District Court of Appeal ruled that negative reviews of a spa posted on Yelp and Yahoo did not meet the public interest element to merit special status in a defamation lawsuit, Morris wrote in an entry on his blog. In a separate case, Kim v. IAC/InterActive Corp., the Second District Court of Appeal granted an anti-SLAPP (strategic lawsuit against public participation) motion filed by someone who had posted a negative review of a dentist on Citysearch.
"If enough of the cases come back where individual posters are being sued, that could chill the desire of people to go on and post their opinion," Morris said. "But all they have to do to protect themselves is to make sure there is some truth to what they are saying."
Updated 1:40 a.m. PST Jan. 7 with background on other cases.
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