When writer Stephen Elliott filed a lawsuit on Wednesday over the “Shitty Media Men” spreadsheet, he didn’t just pick a fight with Moira Donegan, the creator, and the 30 anonymous women who contributed stories of being victims of sexual misconduct. Elliott also triggered a coming legal war with tech giant Google.
A year ago, as the #MeToo movement flourished in the wake of Harvey Weinstein news, this list was privately circulated among women in the media industry. Those who got access to the Google Spreadsheet were able to contribute names and allegations. Later, amid rumors and widespread interest in the “Shitty Media Men” list, it became available for download on several message boards.
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Elliott claims he’s been defamed by his inclusion on the list as someone facing “rape accusations, sexual harassment, [and] coercion.”
The lawsuit raises provocative legal questions about what constitutes a publishing for purposes of defamation law as well as the immunities afforded by Section 230 of the Communications Decency Act. That’s the statute that provides legal protections to providers of interactive computer services against liability arising from content created by third parties.
Whether or not that applies to Donegan herself may be explored as the case proceeds.
But the first major test in this case could come from Elliott’s discovery demands.
In the complaint (read here), Elliott states that he “intends to subpoena the shared Google spreadsheet metadata for the List, email accounts, Google accounts and ISPs in order to learn the identity of the account holders for the email addresses and IP addresses.”
Subpoenaing social media services including Google, Twitter and Facebook for identifying information is fairly common, and while tech providers put up a fight from time to time, most often, they will bow to demands.
Not this time.
“We will oppose any attempt by Mr. Elliott to obtain information about this document from us,” says a Google spokesperson.
That presumably means that Google will go to court in an effort to quash a subpoena or oppose Elliott’s demand to compel compliance.
Google won’t say yet what arguments will be used in the fight. Judging by history, there will likely be nods to the First Amendment and Section 230. The tech service may also attack the breadth of discovery demands as well as highlight how Elliott threatens the core functionality of one of its products by being too nosy.
It’s also possible that any of the “Jane Does,” acting anonymously, may attempt to intervene in the court fight in order to protect themselves from doxing. Given that many of these women are working journalists with particular sensitivities surrounding their communications, the fight could lead to unexplored legal terrain. For example, might Donegan herself invoke New York’s shield law to guard against any effort to force her to testify about those who contributed to the “Shitty Media Men” spreadsheet?
The forthcoming discovery fight in this case may be as important as the fussing over Elliott’s defamation claims.
