If you grew up in New York and were a teenager in the early 2000s, you probably know the top-rated show “Gossip Girl.” “Gossip Girl” is the alias for an anonymous blogger who creates chaos by making public the very intimate and personal lives of upper-class high school students. The show is very scandalous due to the nature of these teenagers’ activities, but what stands out is the influence gossip girl had on these young teenagers. And it makes one think, what could I do if Gossip Girl came after me?
When bringing a claim for internet defamation against an anonymous blogger, the trickiest part is getting over the anonymity. In Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. 2009), a New York state trial court granted plaintiff, model Liskula Cohen, pre-suit discovery from Google to reveal the identity of the anonymous publisher of the “Skanks in NYC” blog. Cohen alleged that the blog author defamed her by calling her a “skank” and a “ho” and posting photographs of her in provocative positions with sexually suggestive captions, all creating the false impression that she is sexually promiscuous. The court analyzed the discovery request under New York CPLR § 3102(c), which allows for discovery “to aid in bringing an action.” The court ruled that, under CPLR § 3102(c), a party seeking pre-action discovery must make a prima facie showing a meritorious cause of action before obtaining the identity of an anonymous defendant. The court acknowledges the First Amendment issues at stake, and citing Dendrite; the court opined that New York law’s requirement of a prima facie showing appears to address the constitutional concerns raised in the context of this case. The court held that Cohen adequately made this prima facie showing defamation, finding that the “skank” and “ho” statements, along with the sexually suggestive photographs and captions, conveyed a factual assertion that Cohen was sexually promiscuous, rather than an expression of protected opinion.
In Cohen, the court decided that Kiskula Cohen was entitled to the pre-suit discovery under CPLR § 3102(c). To legally obtain “Gossip Girl’s” true identity under this statute, we would have to prove that the statement posted on her blog against us is on its face defamatory and not simply an expression of protected opinion.
Now that we may have uncovered our anonymous blogger, “Gossip Girl,” aka Dan Humphrey now we may dive into the defamation issue. There are two types of defamation: 1) Libel is the written form of defamation, and 2) Slander is the oral form of defamation. Because Gossip Girl’s choice of media is a written blog, our case would fall under Libel. But does our claim meet the legal elements of defamation?
In New York, there are four elements that the alleged defamation must meet:
- A false statement;
- Published to a third-party without privilege or authorization;
- With fault amounting to at least negligence;
- That caused special harm or ‘defamation per se.’
Furthermore, our defamation claim for the plaintiff must “set forth the particular words allegedly constituting defamation and it must also allege time when, place where, and the manner in which the false statement was made, and specific to whom it was made.” Epifani v. Johnson, 65 A.D.3d 224, 233, 882 N.Y.S.2d 234 (2d Dept. 2009). The court simply means that we must provide details such as: what specific words were used? What were the terms used? Was the plaintiff labeled a “how” or “skank” like in Cohen, or did they simply call you “ugly”? When? The time said words were spoken, written, or published. Where? The place where they were spoken, written, or published (platform). How? The manner in which they were spoken, written, or published. Lastly Whom? The party or source to whom the statement was made to.
The plaintiff’s status determines the level of burden of proof in defamation lawsuits in N.Y. Is the plaintiff considered a “public” figure or a “private” citizen? To determine this status New York State courts use the “vortex notion.” This term simply means that a person who would generally qualify as a “private” citizen is considered a “public” figure if they draw public attention to themselves, like jumping right into a tornado vortex. Defamation for a “public” figure has a higher preponderance of evidence in defamation lawsuits. The plaintiff must prove that the defendant acted with actual malice (reckless disregard for the truth or falsity of the statement). For defamation of a “private” citizen, the plaintiff the N.Y. court apply a negligence standard of fault for the defendant unless the statements were related to a matter of legitimate public concern.
When the plaintiff is a private figure, and the allegedly defamatory statements relate to a matter of legitimate public concern, they must prove that the defendant acted “in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” Chapeau v. Utica Observer-Dispatch, 28 N.Y.S.2d 196, 199 (N.Y. 1975) This standard focuses on the objective evaluation of the defendant’s actions rather than looking at the defendant’s state of mind at the time of publication.
If the statements Gossip Girl published are so inherently apparent, we may explore defamation per se. There are four elements to defamation per se in New York:
- Statement charging a plaintiff with a serious crime.
- Statements that tend to injure another in his or her trade, business, or profession
- Statements imputing a loathsome disease on a plaintiff, &
- Statements imputing unchastity on a woman
Liberman v. Gelstein, 80 NY2d 429, 435, 605 NE2d 344, 590 NYS2d 857 (1992). If the statements meet these elements, the court may find that the statements were inherently injurious that the damages to the plaintiff’s person are presumed. Another option to consider is defamation per quod which requires the plaintiff to provide extrinsic and supporting evidence to prove the defamatory nature of the alleged statement(s) in question that is not inherently apparent.
Privileges and Defenses
After concluding that Gossip Girl defamed the plaintiff, we must ensure that the defamatory statement is not protected under any privileges. New York courts recognize several privileges and defenses in the context of defamation actions, including the fair report privilege (a defamation lawsuit cannot be sustained against any person making a “fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.”) N.Y.Civ.Rights §74, the opinion and fair comment privileges, substantial truth (the maker cannot be held liable for saying things that are actually true), and the wire service defense. There is also Section 230 of the Communications Decency Act, which may protect media platforms or publishers if a third party, not acting under their direction, posts something on their blog or website that is defamatory. Suppose a statement is privileged or defense applies. In that case, the maker of that statement may be immune from any lawsuit arising from those privileged statements.
Statute of Limitations
A New York plaintiff must start an action within one (1) year of the date the defamatory material was published or communicated to a third-party CPLR § 15 Sub 3. New York has also adopted a law directed explicitly to internet posts. The “single publication,” a party that causes the mass publication of defamatory content, may only be sued once for its initial publication of that content. For example, suppose a blog publishes a defamatory article that is circulated to thousands of people. In the case above, the blog may only be sued once. The Statute of Limitations begins to run at the time of first publication. “Republication” of the allegedly defamatory content will restart the statute of limitations. A republication occurs when “a separate aggregate publication from the original, on a different occasion, which is not merely a ‘delayed circulation of the original edition.'” Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002). Courts examine whether the republication was intended to and actually reached new audiences. Altering the allegedly defamatory content and moving web content to a different web address may trigger republication.
Damages to defamation claims are proportionate to the harm suffered by the plaintiff. If a plaintiff is awarded damages, it may be in the form of compensatory, nominal, or punitive damages. There are two types of compensatory damages 1) special damages and 2) general damages. Special damages are based on economic harm and must have a specific amount identified. General damages are challenging to assess. The jury has the discretion to determine the award amount after weighing all the facts. Nominal damages are small monetary sums awarded to vindicate the plaintiff’s name. Punitive damages are intended to punish the defendant and are meant to deter the defendant from repeating defamatory conduct.
When Gossip Girl first aired, the idea of a blog holding cultural relevance was not yet mainstream. Gossip Girl’s unchecked power kept many characters from living their lives freely and without scrutiny. After Gossip Girl aired, an anonymous blog, “Socialite Rank,” emerged. It damaged the reputation of the targeted victim, Olivia Palermo, who eventually dropped the suit she had started against the blog. The blog “Skanks in NYC” painted a false image of who Kiskula Cohen was and caused her to lose potential jobs. In the series finale, after the identity of Gossip Girl is revealed, the characters laugh. Still, one of the characters exclaimed, “why do you all think that this is funny? Gossip Girl ruined our lives!” Defamation can ruin lives. As technology advances, the law should as well. New York has adopted its defamation laws that were in place to ensure that person cannot hide behind anonymity to ruin another person’s life.
Do you feel protected against online defamation?