Listen to my podcast interview with attorneys Daliah Saper and Mark J. Rosenberg, as they weigh in on the legal case with YouTube and Carla Franklin that's hit the mainstream media. These cyber-attorneys address the big question of: Under what circumstances under should an Internet Service Provider should be required to unmask an anonymous user? [powerpress]
The Carla Franklin Case - Background & Latest News
The legal papers filed by Franklin's attorney demand that Google, which YouTube owns, delivers the taunter's actual identity – the name, address, and phone number of these aliases, which are presumed to be traceable via the IP address of the computer activity to these accounts (that Google is presumed to have access to and records on their servers.) Watch this interview from the CBS Early Show featuring Ms. Walker and Michael Roberts of rexxfield.com, "Internet Libel Litigation Consultant."
What Is Google's Position?
Google has not accepted any interviews from the media or comment directly on the Franklin case, but they did issue this response through a spokesperson:
"When we receive a subpoena or court order, we check to see if it meets both the letter and spirit of the law before complying… Google has a track record of advocating on behalf of it's users.”
(Well, of course. Otherwise, they would get a lot less subscribers!)
Is There A Legal Precedent?
Of course, people have a right to a private user name on YouTube, and anywhere online. The only way someone is going to be able to go through this process successfully is to show an actual legal claim that somebody's reputation has been damaged.
And that's probably why Franklin is employing the same legal strategy used last year by model Liskula Cohen, who last year successfully got Google to unmask the rival who trashed the cover girl as a "skank" and an "old hag." In that particular case, an anonymous blogger posted photos and derogatory comments of the model, and Cohen successfully claimed she suffered "defamatory statements concerning her appearance, hygiene and sexual conduct." The ruling was a sign that the courts were becoming more active in making people who post offense videos, and comments about videos directed at persons, more responsible for their defamatory statements.
Where The Mainstream Media Has It WRONG
I've been checking out a lot of headlines saying that the plaintiff, Carla Franklin, is "suing Google and YouTube." Let's get this straight: Google is not being sued. What's happened is Ms. Franklin's legal counsel filed a plea action disclosure – asking the court for information to be turned over to them (by the party issued the plea action disclosure) before actually starting any legal case against anyone
Interview With Mark J. Rosenberg On The Carla Franklin Case
Note: I mistakenly refer to Carla Franklin as "Carla Walker" in the podcast interview with Mark, and refer to the gentleman in the CBS Early Show, Mr. Michael Roberts, as her attorney. Mr. Roberts is not an attorney, but he is an Internet Libel Litigation Consultant at rexxfield.com.
Is calling someone a "whore" on YouTube legally defamatory?
In the video interview with on the CBS Early Show, Ms. Franklin states that her case is not about being called a "whore." However, the term "whore" was used as the basis for arguing for defamation, and thus the legal argument for turning over the anonymous person's identity. So for that reason, I asked the attorneys: does being called a "whore" on YouTube in the comments area – or anywhere else in a video online (or web page featuring a video), meet the legal criteria of defamation?
According to Mark, that answer is yes. "As soon as you start to getting into somebody's sexual mores and how they work, that's libel 'per se'… and they don't even have to prove damages." He says.
What should Google do?
"Google is doing the right thing on what I advise my own clients – give me a court order or a subpoena, and I'll produce it." Says Mark. "But until then, I'm not producing a thing. When you have a third party posting and you're not editing the posts, the website post is protected. You don't need to take anything down unless there's something obscene in it. If there's obscenity, if there's racial harassment; that automatically falls under what's not allowed according to (YouTube's community guidelines), and they'll take it down. But if I'm them, then I'm not doing any editing, or we're not making any determination on the truthfulness of anything. If you have a libel claim, then first give us the subpoena, and we'll give you the IP address of whoever posted it; and that's all that we can do.”
"The current law protects website hosts and service providers. As long as they're not involved with the editing, they're OK. Google doesn't edit YouTube videos. They allow everybody to post, and it has an automatic takedown for copyright infringement and any obscenity. That's fine. But it's only going to get worse as more people get comfortable posting their comments on the Internet.
Can people really expect to stay anonymous?
"Most people don't realize that they're not as anonymous as they think they are, because they leave their IP addresses behind." Says Mark. "Your IP address can be tracked down to a computer, eventually. And, if a service provider gives someone your IP address, they can track it down to that computer." Of course, savvier computer users will know to go on a computer where the IP address can't be traced to them.
How bad can it be to get defamed on YouTube?
Mark says that with anything online (but especially with video and definitely with YouTube), the repercussions can be a lot worse than offline, because with online the video can go viral. "Once people start copying it online, it's very hard to stop (the spread of the video)." He says. "Once a video goes viral, the original poster loses control over it, and the damage can be immense. No matter whom the person is or what they want to do, it can't be stopped, because it's just too many people and it's beyond everybody's control.”
Note: I give credit to Ms. Walker's Internet libel legal specialist for getting copies of the video removed from the Web, along with the original comments removed. I presume this has been preserved as evidence for their case, but it does make it hard for a journalist to put it into the most accurate context and coverage possible!
Interview With Daliah Saper On The Carla Franklin Case
What kind of defamation is this?
As Daliah explained to me, defamation is a statement claiming to be fact that can proven false, published about a person or business, group or other organization. It is something that can be construed as being injurious to the offended party, whether intended or not by the party making the statement.
Defamation has to meet this criteria
- Has to be false
- Has to be stated as a fact (not opinion)
- Has to be understood "in context”
- Can be shown to cause damages (either actual or potential)
There's two different broad categories of statements that can be constituted as defamation. One is defamation "per se" and one is defamation "per quad.”
"Per se" statements fall under four categories:
- 1 – Saying you can't do your job
- 2 – Saying you've committed some sort of crime, like a felony
- 3 – Accusing you of having loathsome disease (like herpes)
- 4 – Mentioning your sexual leanings (e.g, promiscuity).
"In Ms. Walker's case, the statement of calling someone a 'whore,' could fit this 4th category." Says Daliah. "Therefore, the difference would be, the client would not have to show actual monetary damages [done to her]; they would be presumed, and the jury would award whatever they perceive is appropriate.”
Why you have to be vigilant with defending your online reputaton
In the video interview with the CBS Early Show, Ms. Walker mentions that she has already spent 8 months dealing with Google on this issue.
"I warn my clients of this all the time: A lot of states have a one-year statute of limitations for defamation claims." Says Daliah. "If you don't find out about a posting in that one-year period, then you will have a tough time bringing a lawsuit that long after the fact; you could be barred from any relief.”
Here's what that could mean with Ms. Walker's case: If the original posting happened over a year ago, it may prove far more difficult for them to have Google be ordered to turn over the the actual identity of the person who posted it. What's likely is that Google would have cleared those records on its servers by that period of time, anyway. (I would believe that Ms. Walker's legal counsel is already aware of this, so is probably now acting swiftly to meet that statute of limitations.)
Should The Process Of Filing For Disclosure Be Changed?
This is what Ms. Walker calls for in her interview on the CBS Early Show. What do you think? If you felt you had a legitimate claim of defamation and harassment that was being perpetuated on YouTube, should you have to wait months before getting an answer from Google? And how long is a fair time to have your case heard in court? Especially when considering the statute of limitations can run out after a year? We don't have all of the specifics on this case yet, so it's admittedly speculative on what was filed when, and how long the involved parties have had with their own activities. Either way, we're expecting a ruling on this from the district Manhattan court come early September.
Stay Tuned For More YouTube Legal Drama…
I'll be continuing to watch this case, including with the ruling on if Google does turn over the identities of the anonymous posters, and what effect this may have on YouTube's own policies and handling of user comments.
About Our Cyber-Attorneys
Mark J. Rosenberg, long-time intellectual property attorney, Since the mid-90s, a large part of his practice has focused on the legal issues related to Internet marketing. He's been a regular speaker at the Search Engine Strategies conference. And most recently spoke at SES San Francisco on the legal issues with Facebook for business.
Daliah Saper is the principal attorney for Saper Law Offices in Chicago, specializing in intellectual property law, media and entertainment law, litigation, and business affairs. She was most recently interviewed on Fox Business News (watch video below) regarding Facebook, social media, business, and the law; she also regularly hosts seminars and webinars educating businesses on the legal issues with the InterWeb.