Beware: Anonymous Commenters & Those Who Seek To Unmask Them

Curious Case of Elloras Cave

Erotica publisher Ellora’s Cave’s defamation (libel) lawsuit in Ohio state court against Dear Author and the blogger behind it for a September 14th post discussing the publisher’s financial stability and practices is a hot topic on the Internet this week.

I’m not going to comment on the merits of the allegations — I really have no idea about the truth or falsity of the statements on Dear Author — but I will say that this lawsuit is yet another cautionary tale for the so-called “uncredentialed” bloggers out there without a legal team or liability insurance. It’s a reminder about the importance of checking quotes, checking facts, and limiting the vitriol in our posts.

But, of course, there’s only so much a blogger can do to protect herself from a defamation lawsuit. I can only hope that the checks we have in our judicial system to limit frivolous lawsuits — such as a subsequent wrongful use of civil proceedings suit against those who initiate frivolous cases — dissuade overly-sensitive and/or vengeful people from resorting to threats of legal action in an attempt to control what others write about them.

So, bloggers take a risk each and every time we step on our virtual soapbox. Anonymous commenters take a risk too, whatever false sense of security we may feel as a result of our fictitious handles.

According to Dear Author and The Los Angeles Times,** Ellora’s Cave is seeking the real identities of anonymous commenters to Dear Author’s post, which had 220 comments the last time I checked it.

I’m unfamiliar with Ohio law (a very quick search of cases on Lexis revealed nothing relevant), but if it’s anything like Pennsylvania and New Jersey, it’s certainly possible for a plaintiff in a defamation lawsuit to uncover the names of anonymous and pseudonymous commenters through a court order. See, e.g., Dendrite Int’l, Inc. v. Doe, No. 3, 342 N.J. Super. 134 (2001). When deciding whether to expose the identity of anonymous commenters, courts generally balance the harm of the allegedly defamatory speech against the benefits of anonymous speech, which include the encouragement of debate and discussion of sensitive topics.

As I said in Anonymity Doesn’t Only Protect The Trolls (It Protects Nice People Too):

[I]f a comment on Amazon is actually defamatory, the author has the option of suing that commenter under state law. These cases are notoriously difficult for plaintiffs, but not unheard of, and the harmed party could get the identities of pseudonymous or anonymous commenters by court order. See Pilchesky v. Gatelli, 2011 Pa. Super. 3 (2011)(“The court must expressly balance the defendant’s First Amendment rights [to speak anonymously without government intrusion] against the strength of the plaintiff’s prima facie case [that the defendant defamed the plaintiff].”).

Earlier this year, pursuant to a Pennsylvania state court order, the head of a local union managed to uncover the identity of an anonymous commenter who called him “a pedophile.” So, it happens, and maybe Ellora’s Cave will be equally successful in Ohio.

That said, Ellora’s Cave may find that any attempt to expose the identity of these commenters — many of whom are readers and writers of erotica, some of whom who might not want their reading and writing preferences attached to their real names — will further alienate the company from its authors and consumers. That wouldn’t bode well for their future financial stability, whether or not the statements made by Dear Author are true.

_____________________________________________________________

*Ellora’s Cave has demanded that Dear Author remove the allegedly offensive post from the blog. Even if they’re successful, it’ll still be available as an attachment to their Complaint (linked HERE as a PDF). It’s part of the public record. The full docket, including the motion for the Temporary Restraining Order and the accompanying memorandum, is available here.

**The Complaint doesn’t allege anything against “John or Jane Doe” or any other fictitious names. I was relying on Dear Author and the L.A. Times for information on Ellora’s Cave’s request for the identities of anonymous bloggers, but as commenters to this post have been kind enough to point out (thank you!), the request is buried in the conclusion to the memorandum in support of the Temporary Restraining Order. That’s a very strange place to put it (see my thoughts in the comments).

 

32 thoughts on “Beware: Anonymous Commenters & Those Who Seek To Unmask Them

  1. I’ve wondered if the request to out anonymous commenters wasn’t secretly genius in its placement. After all, if you’re a lawyer with a difficult client, you can point to it and show it’s “in there.” Most will have no clue that it’s in a place that will functionally be ignored.

    I’m more fascinated by the lawyer saying: “the urgency associated with a temporary restraining order had become attenuated” ((link to doc)), and am not sure if it means the TRO as a whole or just the request for anon commenters.

    Speaking of, twitter poster @pubnt keeps claiming that EC’s going to be adding a whole bunch of Twitter users to out, along with anon commenters. (I don’t speak anonymously about EC, but I’m probably on the target list.)

    1. Yeah, it’s a good reminder about how we have to be careful as bloggers/commenters. I’m curious to see how this case plays out. It’s a crazy one.

      I hope you had a nice weekend!

  2. Pingback: FYI on the Dear Author Defense Fund and Keeping the Streisand Effect Going with Ellora’s Cave #notchilled | Babbling About Books, and More!

    1. Thanks! It’s very nerve-racking to see a blogger get sued. It isn’t as rare as we like to think. It serves as a good reminder to be careful with our words.

      Have a great weekend!

  3. Pingback: On Ellora’s Cave’s Request to Out Anonymous Commenters

    1. I read the complaint, which ends with the attachment, but that’s not where the request is. As Jess Haines mentioned, it’s buried in the conclusion to the Memorandum in Support for the TRO, which is an incredibly weird place to put it. I’m kind of surprised by the request, as though it’s a PS and not something courts take very seriously. I also can’t believe they asked for the identity of all anonymous commenters and not specific ones who made allegedly defamatory statements. This looks like bad lawyering to me. It’s very sloppy.

  4. Getting the identities of the bloggers is in the request for restraining order attached to the complaint. See the Conclusion at the end of the memorandum attached to the restraining order request (2nd to last page of the document):

    http://www.cpclerk.co.summit.oh.us/PublicSite/Documents/sumq8000014A4.pdf

    Also there are more specifics about the background and support of DA’s position/statements in these posts:

    http://smartbitchestrashybooks.com/blog/elloras-cave-sues-dear-author-more-streisand-effect
    http://deirdre.net/elloras-cave-sues-dear-author/

    And for a little more light reading, somewhere in the 300s of posts, around page 14, 15, 16 up through the latest page, you’ll find current info relevant to the situation at hand:

    http://absolutewrite.com/forums/showthread.php?t=808

    I believe somewhere buried in the AW thread you can find a link to the OH court’s website where all the legal docs filed thus far in the case can be found.

    1. Thank you! I read the complaint last night, but not the memorandum in support of the TRO motion. I would never expect such a bold request to appear in the conclusion to the memorandum. Is that the only place it appears?

      Requesting the identity of anonymous and pseudonymous commenters is a very serious request with First Amendment implications. They should’ve provided law in support of their request AND they should’ve narrowed their request to the specific anonymous commenters who have allegedly made defamatory comments. As I said in my response to Azteclady (in the comments above), this looks like very sloppy lawyering.

      1. You’re welcome! I’ve been following this whole situation with interest even though I am not an EC author or have any horses in this race aside from being a blogger and leaving the occasional comment on blogs. I agree, it does appear to be sloppy lawyering and I do wonder if the attorney representing EC knows about EC’s past litigious actions against others–including their former legal representation.

        I don’t really have the time to dig up all of the specifics, but the case is Christine Brashear v. Ellora’s Cave and Tina Engler if you feel like getting your Google-fu on. Here’s a brief summary of what went on last time they lawyered up:

        http://dearauthor.com/wordpress/2010/03/05/elloras-cave-fails-to-show-up-respond-to-discovery-in-lawsuit/

    2. I can only assume they’ve never practiced in this area before and didn’t bother to research the law before tossing that request in. They might as well have asked for a pony.

      To be honest, a request for a pony would probably get a better reception from the court than a one-sentence request to trampling on the First Amendment rights of non-parties.

      1. I’m astonished by the audacity of that request. I agree with you about how the Court should approach a request to trample on the First Amendment rights of non-parties.

  5. Defamation cases are rarely a good idea. Unless you have a defamation per se case, they are almost impossible to win. EC is also opening itself up to discovery. Ugh. The best way to judge the strength of defamation case is to find out if the attorney is getting paid their hourly rate or working on a contingency.

    1. Yes, they are rarely a good idea. I didn’t even think Hadid’s case against the New York Review of Books is a very strong one–despite the D’s admission of false facts–because of the “actual malice” standard. Not only are these cases hard for plaintiffs to win, but they also draw lots of attention to the issue the plaintiff is trying to hide (what good is it for Ellora’s Cave to demand injunctive relief? Who hasn’t already seen the article?).

      I would love to know whether the attorney is getting paid by the hour or doing this on a contingency fee basis. What I’ve seen so far from Ellora’s Cave’s attorney is poorly done–I can’t imagine what they were thinking by requesting something as audacious as the identity of non-party anonymous commenters in the conclusion to a memorandum!–and I’d be shocked if the Court agrees with it. Stranger things have happened, though.

      1. I agree. It’s an ill-conceived case that is going absolutely nowhere. Additionally, I noticed that EC has not sued the LA Times even though they repeated Dear Author’s claims. That tells me that they were simply hoping to intimidate Dear Author.

        1. There’s been so much written about Ellora’s Cave–and some of it may go farther than just reporting on the lawsuit–that Ellora’s Cave would have to sue the whole Internet to address it.

          Someone I know said that about Joseph Rakofsky BEFORE he went and did exactly that* (people later called it, Rakofksy v. the Internet), and it didn’t end well for Rakofsky. I certainly hope Ellora’s Cave wouldn’t attack everyone, but their request for the identity of all of the anonymous commenters suggests otherwise.

          *Prior to Rakofsky’s suit, I’d had a conversation with someone about whether what had been written about Rakofsky in the Washington Post and numerous blogs would spark a defamation lawsuit. The person, who had also written about Rakofsky, answered, “He’d have to sue the whole Internet!”

  6. I think it’s ironic that EC decided to sue a blog run…by an ATTORNEY. While I’ll admit I’m no fan of DA, I am, in this case, cheering them on and hoping they win this. The discovery process alone (truth is a defense against a defamation case) means that writers, editors, and cover artists not being paid will have a shot at cracking the walls into EC’s finances and maybe it will enable them to band together for a suit of their own if the court finds DA’s post is, in fact, the truth. I know so many authors who don’t enact audit clauses because it’s not worth it, or they can’t afford it. If many of them see there’s a problem, this might enable them to band together to if not get money out of that turnip, at least get a finding against them that will serve as a warning to new authors NOT to submit to them and risk the same fate. And there are so many authors afraid to speak out right now, afraid their pen names will be made public. The ones who can aggressively pursue this, hopefully that will help all of them. It doesn’t help that EC has an enormous tax bill outstanding in OH. That right there is a red flag. A massive one.

    1. I’m kind of surprised that Ellora’s Cave would want to open themselves up to discovery on the issues Dear Author discussed in that post. I’m even more surprised that they would request to know the identities of the anonymous commenters, who, as you said, might not want to shed their pen names. From a public relations standpoint, this lawsuit was a very bad move for Ellora’s Cave–as defamation lawsuits often are–whether or not they ultimately prevail on the merits (which, quite frankly, is a very unlikely result–these cases are just hard for plaintiffs, particularly those who are probably limited purpose public figures, which means they have to prove that Dear Author acted with “actual malice”). Thanks for stopping by and leaving a comment!

  7. This is so sad, because to me the minute Ellora’s Cave filed that suit they put themselves in an adversarial position against authors and readers. The allegations of Dear Author might be false (though it doesn’t look that way) but this suit is a bad PR move either way.

    On the positive side, I see this as an acknowledgement of the online space as a “real” place, where posts and comments, even “anon” ones, are given weight. It is indeed a powerful reminder that bloggers and commenters can and will be held accountable for their words, and should put as much thought and care into what they say as if they were speaking in person or writing in a physical medium.

    1. “On the positive side, I see this as an acknowledgement of the online space as a “real” place, where posts and comments, even “anon” ones, are given weight.”

      I really appreciate this perspective, Amelia. It’s nice to know that what we say in the dark depths of the blogosphere matters. It’s nerve-racking too. We have to be careful, and Ellora Cave’s lawsuit serves as a good reminder.

  8. As an author, and as someone who posted about Silver Publishing when it was coming apart at the seams, I hope EC in the end doesn’t have a leg to stand on. Authors should know when a publisher is in financial trouble so as not to place manuscripts with them. That information only gets out via those who have had dealings with the publisher (as I did with Silver). Surely, “freedom of speech” should cover such things. What may be considered vitriol to some may be fact to others.

    1. Hi Theo, thanks for reblogging the post! I think it’s unlikely that Ellora’s Cave will prevail in this lawsuit. Not only is it difficult for plaintiffs to win this type of lawsuit–particularly when they’re a limited purpose public figure (which imposes a higher standard to win)–but some of Dear Author’s comments were drawn from typically reliable sources (like tax records) and there seem to be many people who claim to have negative experiences with the company. I haven’t seen the evidence myself, but what I’ve read so far makes me doubtful that Ellora’s Cave has much of an argument. I wasn’t impressed by Ellora Cave’s Memorandum in Support of their Temporary Restraining Order (which outrageously requests the identities of non-party anonymous commenters in the conclusion!). We’ll see what happens.

  9. I spent many years as an attorney, and it appears on its face that EC has a tough row to hoe. Dear Author’s anonymous posters may be whistleblowers and entitled to a fair amount of protection. And the problem with all such claims is that the truth of the allegations by DA may be a defense to the claim. EC should take a hard look at what it is doing, because if some finder of fact agrees that the facts cites are true, then EC is doubly damned. First by filing the suit, and secondly by doing so knowing the suit was false.

    1. Not only is truth a defense, but, if Ellora’s Cave is a limited purpose public figure, they will also have to prove “actual malice,” which is a tougher standard than what is applied to defamation cases initiated by private figures (as you probably already know). That’s why I don’t even think Hadid’s defamation lawsuit against the New York Review of Books/Martin Filler is likely to succeed, even though the NYRB apologized for the statements. Thanks for the comment!

  10. I read about this at another website and it is certainly eye-opening. It’s easy to forget that bloggers have many of the same responsibilities and run many of the same risks as journalists, except without a powerful media outlet to back us up when we take a stand. As for the anonymous commenters, that will be a very telling decision if they are forced to reveal their identities. It’s a strong reminder that nothing on the internet is private.

    1. Yes, it’s certainly eye-opening! We have to be careful, whether we’re bloggers or casual commenters. What’s amazing–and I’ve updated the post since you left this comment–is that Ellora’s Cave requested the identities of the anonymous commenters in the conclusion to their memorandum in support of the Temporary Restraining Order (a very odd place for it)–as though this isn’t as audacious a request as it is! They are trying to trample of the First Amendment rights of non-parties. I hope the Court refuses to do it.

I appreciate your comments (respectful dissent is welcome)!

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