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.
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.
[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).