Google lets Orthomom (and the rest of us) down
Yesterday's hearing in Greenbaum v. Google did not turn out the way we all expected. Earlier in the week (link), I explained that the document Pamela Greenbaum produced, an order to show cause, is basically a request from the court to require the opposing party to show up in court. The judge decides, based on the liklehood of the petitioner's claim prevailing in a lawsuit, whether to grant the request or not. We all predicted that because the defamation claim is without merit, the judge would dismiss the case at the very start.
But yesterday, Judge Marcy S. Friedman ordered Orthomom to appear in court and present her case, or she'll face having a default judgment entered against her (documents here). I find it surprising that the judge would rule as such without even considering the merits of the case. Whoever keeps saying, in Orthomom's comments and elsewhere, that this hearing was purely procedural and too premature to consider the facts of the case, is wrong. Not every request for relief is granted; it's entirely in the judge's discretion to decide whether said request is worthy of continuance. This would have been the place to dismiss the case outright. But given that a judge's power is completely discretionary (within the letter-of-the-law, of course), it translates into oftentimes unpredictable scenarios .
What's most surprising is the way that Google responded. Google is not a party in this lawsuit, in that they are not being held liable for defamation or damages. They are only being asked to hand over identifying information of the people who will subsequently be sued. Technically speaking, Google is considered an "interactive computer service" (or ISP- internet service provider) and is not responsible for "information provided by another content provider," namely its users (link to The Telecommunications Act of 1996). It is therefore legally understandable that Google has agreed to "produce responsive documents... unless a third party objects to such production". But doesn't Google have an interest in protecting its users? By handing over the entire defense to the individual blogger, who most likely has less resources, Google is making itself extremely vulnerable. Why would Google destroy its reputation as a secure provider only to avoid some time in court? They had the power yesterday to counter Greenbaum's request with an argument that would convince the judge how baseless this lawsuit would be and the frivolousness of ordering Orthomom's appearance. Instead, they readily stipulated to handing over identifying information unless Orthomom was willing to defend herself and her blog's users. It's a surprising position for Google to take; I wish I understood more about the law so that I could tease out the possible reasons for this. What I do know is that ISP's typically do not fight subpoenas (allowing the responsible party to do the work) when the subpoenas are for criminal activity, such as leaking confidential information or trade secrets, etc., but in this case, when the claim is so obviously insufficient, Google should have quashed it right away.
If Orthomom responds on time, Google will then file a motion to dismiss the order. At that point, the court will examine the facts and decide whether there is good reason to reveal Orthomom's identity. That's where we're all hoping the judge sees how baseless Greenbaums claims really are, given that there was no defamation (bigot and anti-Semite are unpleasant opinions, not false and damaging facts) and given that Greenbaum is a public official, making any libel claim more difficult to substantiate. Still, at this point, it's too early to tell how this will play out.
Interesting reading on the topic:
Posted @ 9:00 AM
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