Less appealing and of lower value is the time-honored internet tradition of trolling, ranging from hilarious to deplorable. Just visit the comments section of any YouTube video to see what we mean firsthand. Homophobia, racism, sexism, and plain old disgusting things run rampant, and there are too many commenters making too many comments to police it all. But trolling is often in the eyes of the beholder. What might be a reasonable statement to you could be harmful to the business of the entity the comment is targeted at. How do you tell the difference between the two, and more importantly, how does the law?
The Lenahan Law Firm of Dallas, Texas, incensed by an anonymous online review, has begun an exploration of the issue by suing the poster for defamation. Because they have not identified the defendant, they plan on subpoenaing Google for his information. This case presents many different issues, so we will unpack some of the bigger ones, and then discuss how it could be relevant in the gamespace.
What is defamation? It is the communication to a third party of false information intended to injure the reputation of a party. The specific type of defamation in this case would be libel, as it is written. The Second Restatement of Torts sheds a little more light on the issue, calling defamation a communication that “tends to so harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with them.”
What was the offending statement in the eyes of the Lenahan Law Firm? The anonymous poster “Ben” created a Google Review saying, “Bad experience with this firm. Don’t trust the fake reviews here.” Each sentence, depending on the facts, could be considered libel. If “Ben” had never retained Lenahan, claiming he had a bad experience would be a false statement.
Even if he had, claiming that the positive reviews were “fake” could also be false. If Lenahan can prove their good reviews came from real clients, they could show this easily. Both statements, depending on how a fact finder weighed their impact on Lenahan’s business, could be the type that could “deter third persons from associating or dealing with them.” That is, someone who saw the post could decide that retaining the firm is a bad idea.
What about getting access to “Ben” for the lawsuit? This is complicated. One case that involved a similar situation was Sony Music Entertainment vs Does 1-40, from the Southern District of New York in 2004. Sony discovered multiple individuals trading copies of their copyrighted recordings, and decided to do something about it. To find out the identity of the individuals, they subpoenaed internet service provider Cablevision for their customer records.
In their decision, the court noted that the First Amendment interests of the anonymous individuals had to be balanced against Sony’s need for disclosure. In granting the subpoena, the court identified five important factors. First, there had been a concrete showing by Sony of copyright infringement. Second, the subpoena was specific. Third, there was no other way for Sony to learn the identities of the defendants. Fourth, the information was central to Sony’s case. Finally, the Cablevision subscribers had little expectation of privacy in distributing copyrighted songs without permission.
So how might this method of analysis apply to Lenahan’s subpoena? We must remember that this is a different jurisdiction and a Texas court would be under no obligation to treat Sony as binding precedent. But, that case does directly deal with the issue of when and how you can get to the information an anonymous party, so it is worth considering.
On some of the factors, Lenahan has a strong argument. The subpoena is specific, there is no other way for them to determine the identity of “Ben”, and the information is central to Lenahan’s case. The two remaining factors are more problematic. Because of the facts of the case, there has yet to be a concrete showing by the plaintiff of libel. This could be possible for at least part of the statement if Lenahan can show that their positive reviews were created by real clients.
What might be more difficult would be showing that “Ben” had no expectation of privacy in posting his negative review of Lenahan. In Sony, it was easy for the court to conclude that no one could reasonably expect their privacy to be protected while they illegally downloaded songs. But America has a long tradition of protecting anonymous, critical speech. As far back as the Federalist Papers, citizens have enjoyed an exceptionally broad right to speak their minds without signing their name. As we noted above, that protection is stronger in the political arena.
It could be very hard for Lenahan to show “Ben” did not have a reasonable expectation of privacy in posting his negative review. He could still have matters pending with the firm, and fear they would look for revenge if he included his name. None of this should be taken as a conclusive statement that Lenahan cannot get to this information. The more they are able to make a showing that the statement was libel, a court might be persuaded the First Amendment interest of “Ben” speaking freely is overwhelmed by the defamatory nature of his comments.
But, Lenahan is in a difficult position. ISPs like Google have often resisted such subpoenas because they want to protect their business. They might worry customers will choose not to use their services, like Google Reviews, for fear of being sued. Depending on how they look at it, Google could push back hard against the request for the poster’s identity.
How might this case apply to the gamespace? What if a developer, infuriated by an anonymous review of a game that they felt mischaracterized their work, sued for libel and subpoenaed for the poster’s identity? If the developer can show the reviewer complained about features that were not part of the game, it could rise to the level of defamation. There is an oft discussed concern in the potential conflict of interest of professional game reviewers.
This is part of the reason that non-professional reviews are worth discussing. If you believe anonymous, unpaid reviews are inherently more honest, then the issue is clear. If a developer could demonstrate the review could discourage people from buying the game it would improve their case, even if the statements were generally true. A fear of lawsuits might discourage some from reviewing. But, there is precedent to suggest this is unlikely, and one of them involves Barbara Streisand.
In 2003, Barbara Streisand sued photographer Kenneth Adelman for posting aerial photos of her home as part of an environmental survey of the California coast. The lawsuit backfired. What was previously an obscure photo in a collection of hundreds became widely reprinted and discussed. The celebrity had brought the case to court in order to protect her privacy, but ended up making the offending photograph extremely famous.
Her case was dismissed, and the “Streisand Effect” was born. It remains a cautionary tale to anyone who tries to lasso the power of the internet. Any legal outcome becomes irrelevant if your lawsuit draws attention to exactly what you are attempting to hide. The court of public opinion in the electronic age does not obey defined rules of procedure. Anyone seeking legal relief involving the web would do well to consider this reality in their decision making.
The Lenahan Law Firm believes their customer base from online reviews is significant, and it is absolutely their right to try to protect it. But by bringing this suit, they have made it into a news story, albeit not one as large as the Streisand Effect. They may believe the case is worth the trouble, and that an anonymous party impugning their online reviews is a serious harm to their business. But they have cast a spotlight on “Ben,” and an issue that might have faded away is now news in the legal community. It remains to be seen how the issue will be settled.
The online presence of gamers is much larger than the number of people seeking legal services. If there has been a little bit of discussion on the Lenahan Law Firm, a suit against an anonymous game reviewer would generate a mountain of conversation. What was a frustrating and annoying review that dropped out of sight could instead become a popular post on Digg and Fark.
This drives home the thought process that underlies any lawsuit. A cost-benefit analysis has to be part of the decision. Maybe the review was false, discussed features that were not part of the game, and could dissuade people from purchasing your product. But anyone can post an online review easily, and a lawsuit might put a spotlight on something that could be quickly forgotten. If Lenahan’s lawsuit succeeds, we will know whether it was worth the trouble.
Zack Bastian is an official contributor to Law of the Game. A third year student at George Washington University Law, Zack works at the Woodrow Wilson Center's Science and Technology Innovation Program and is a member of the American Intellectual Property Law Association. The opinions expressed in his columns are his own. Reach him at: zack[dawt]bastian[aat]gmail[dawt]com.