Yesterday, Google released the name of an anonymous blogger engaged in a defamation case in Israel. The case is significant on a number of accounts not the least of which is because it may help loosen privacy restrictions in the US.
You can read the original story from Globes here. Techcrunch has just updated its coverage with a letter from Google.
To find out the extent of it’s impact on privacy law I contacted two US and Israeli lawyers specializing in the area. David Mirchin is an attorney licensed in Israel and Massachusetts and an Adjunct Lecturer of Internet and e-Commerce Law at The Interdisciplinary Law School (Herzliya, Israel). You can find David’s reactions to the Google case here. Russell Mayer is a senior partner in Livnat, Mayer & Co. and is the author of the Israeli section of an international book on privacy law. He too is licensed to practice in the US and in Israel. You can find Russell’s comments on the Google case here.
Both felt that under some circumstances the Israeli ruling may form a precedent for the US courts. David Mirchin was particularly concerned that Google didn’t wait for a court order before turning over the user’s identity. This was a step further from an earlier case where an ISP at the very least waited for a court order before complying. Russell thought that what was exception here was the courts willingness to expand the disclosure of user identity beyond just copyright violations or other typical Israeli cases.
Israel’s concern of privacy isn’t as ingrained as the US. Whereas in the US pure opinion can not by definition be considered defamation that’s not the case in Israel. The Israeli court takes opinion expressed in forums, for example, more seriously. While at first this may give one relief the fact is that the sacrosanctness of opinion within the US law has slipped over the years. Where as once one could say anything today “verifiable opinion”, such as “George is a thief”, can be contested for defamation. Mirchin is concerned that the US courts limitations around privacy may now slide even further given the Google case.
There’s no question that views discussed in forums can carry grave importance. Just look at the stock manipulation schemes that relied on conversations in chat rooms to pump up stock prices. The flim-flam artists behind these scams certainly recognized the importance of forums and so too should the law as it comes to defamation.
Where do the courts draw that line though is the question. Clearly some instances of character defamation are more obvious than others. Mirchin cites the case where an anonymous individual impersonated 31 posters all claiming or supporting the claim that a high government official was guilty of embezzlement and that they knew the identity of this official’s out-of-wedlock child. Other instances are less defined.
And on this the “porn-definition” comes to mind “I know it when I see it” may work for identifying extreme cases of defamation, but where does it end? If two people claim that a politician is an adulterer does that make it defamation? Three people? It’s a slippery slope we embark on indeed.
