Google on Privacy: Hasty But Reasonable

A recent Israeli court case has Google divulging the identity of an anonymous blogger. To find out the implications for US law we asked two US and Israeli attorneys, David Mirchin and Russell Mayer, for their opinions here's what David had to say. Russell's opinion can be found here.

Israeli courts have been much more sympathetic to plaintiffs who have claimed that they have been defamed over the Internet in blogs, forums or talkbacks. Google's actions in revealing the blogger's identity is consistent with the trend in Israeli cases over the last year. Since US defamation law is similar in major ways to Israeli law, these cases may indeed be cited by US courts wrestling with these issues.

The issue that typically arises in all these cases, like yesterday's Google case in Israel, is whether an anonymous poster who writes some scathing diatribes should be required to reveal his identity and face a defamation lawsuit. In the US, following two cases, New Jersey case of Dendrite and the 2005 Delaware Supreme Court decision in Cahill, it tends to be difficult for plaintiffs who wish to sue anonymous bloggers for defamation.

Israeli cases have cited Dendrite and Cahill, but have come to a different conclusion. They have ruled that under certain circumstances the identity of a poster can be revealed. In the 2006 case of Bezek v. John Doe, this occurred where an anonymous poster impersonated 31 posters all claiming or supporting the claim that a high government official was guilty of embezzlement and the identity of this official's out-of-wedlock child. The court held that you could reveal the poster's name because it could rise to a criminal claim of defamation.

In April, 2007, in the case of Rami Mor v. Ynet (The site of a major newspaper and a popular Israeli portal), the standard to release a poster's identity became easier. Rami Mor, the plaintiff in that case was a practitioner of alternative medicine. An anonymous poster to an Internet forum hosted by ynet claimed that Mor was a "thief" and a "charlatan". The court discussed Cahill extensively, and stated that in the normal case, the anonymous poster's identity could not be revealed. There needed to be an "extra element", such as:

• the plaintiff's chances to succeed in the claim are good;
• the type of protected speech (political speech is more protected than commercial speech);
• the offensiveness of the speech; or
• the weight that a reasonable reader would attribute to the publication.

The court held that due to the offensiveness of the claims, and the repeated allegations, the anonymous poster should normally have his identity revealed. But because this was a very new area of law, the court decided not to order the disclosure of his identity in this case.

But that restraint didn't last long. Just this past month, a court ordered Keshet, the ISP, to reveal the IP address of a poster who attacked a correspondent of Globes, a major Israeli business newspaper.

In light of the very recent Israeli case law, Google's actions are not unreasonable, even though they push the envelope yet one more step in favor of defamation plaintiffs, because Google did not even wait for a court order to reveal the IP address of the blogger.

The Israeli case law has been much more sympathetic to defamation plaintiffs than the US cases, and have diverged from Cahill, and US defamation law in two important respects:

1. Israeli cases have concluded that opinions, if they are outrageous enough, frequent enough, and damaging enough, can form the basis of defamation claims.

2. Israeli courts have not been dismissive of blogs and forums and talkbacks as was Cahill, which said that they are not dependable. Israeli courts have said that, while some forums or blogs may not have credibility, others can be highly credible-and therefore, damaging to plaintiffs.

The Israeli cases have shown much less tolerance for anonymous posters slinging unsubstantiated claims at officials. This is not necessarily a bad thing, so maybe US courts should do something rarely done--look eastward toward Israel for some guidance on these issues.

David Mirchin (dmirchin@meitar.com) is the head of the Technology and Licensing Department in Meitar Liquornik Geva & Leshem Brandwein. He is an Adjunct Lecturer of Internet and e-Commerce Law at The Interdisciplinary Law School (Herzliya, Israel) and is licensed to practice in Massachusetts.