In a case that will certainly test Google’s commitment to protect the privacy of its users, author Stephen Elliott is moving forward with an attempt to obtain a court-ordered subpoena to ferret out the identity of the anonymous woman who accused him of rape, sexual harassment and coercion.
Elliott, suing Moira Donegan, the creator of the “Shitty Media Men” spreadsheet, as well as 30 “Jane Does” for defamation, made broad demands upon Google on Jan. 8. On Wednesday, he submitted a motion for early discovery, one that seeks to command Google to produce electronically stored information.
Adding to this exigent situation, the “Shitty Media Men” list is a product of many female journalists in the industry who responded to the #MeToo movement by sharing with one another the names of men who allegedly have misbehaved. Elliott doesn’t merely want the names of users who contributed and IP information. According to the letter his attorneys sent to Google earlier this month, Elliott also demands all versions of the list, all people who accessed the spreadsheet and “all emails or electronic communications sent pertaining to the list’s creation, publication, editing, circulation [and] publicizing.”
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When Elliott initially filed his defamation lawsuit in October, Google told The Hollywood Reporter, “We will oppose any attempt by Mr. Elliott to obtain information about this document from us.”
This past Friday, though, Elliott’s lawyers expressed confidence that Google would relent.
Elliott “believes Google will comply with a valid subpoena,” wrote attorney Andrew Miltenberg in a letter to the judge.
He’s now following up.
According to the newest discovery motion, Elliott’s attorneys have spent significant time unsuccessfully attempting to unmask his anonymous accuser. The plaintiff’s lawyers say they’ve fielded tips yielding “potentially useful information” and have followed up with more phone calls. That includes “interviewing prominent media members, combing social media and performing other investigative tactics.”
Apparently, those prominent journalists either don’t know who accused Elliott of “rape accusations, sexual harassment, [and] coercion” or won’t blab.
Having explored alternative means toward figuring out the “Jane Does,” Elliott is now after Google for information. He asserts that he has made a prima facie case of defamation, and that the statements in the “Shitty Media Men” list are not protected by the First Amendment. Further, his lawyers argue “the Jane Does have a limited expectation of privacy in their email account information,” a proposition that many working journalists using Google who need to protect sources may find frightful.
Donegan is moving for dismissal in this case before New York federal judge LaShann DeArcy Hall. Her attorney, Roberta Kaplan, recently told the judge that Elliott hasn’t alleged “what role Ms. Donegan played in publishing the relevant statements,” and further, Elliott can’t demonstrate actual malice.
Elliott theorized in his complaint that Donegan was aware of falsity because of his published sexual preferences, “including his preferences as a submissive male in a BDSM context,” meaning bondage and discipline, dominance and submission.
Kaplan’s response?
“As a factual matter, this ‘too submissive to rape’ defense is obviously absurd. Regardless, it does not plausibly follow that whoever published or edited Mr. Elliott’s entry on the List (a) agreed that BDSM submissives cannot engage in rape; and (b) nonetheless decided to falsely accuse him. … Mr. Elliott’s only allegation about Ms. Donegan’s state of mind is that she has ‘hatred of men.’ But even if that were true, Mr. Elliott fails to allege why, if Ms. Donegan hates all men, she decided to publish a knowingly false accusation against him. It would make a mockery of the law to hold that any woman charged in a complaint with ‘hatred of men’ will be presumed to have acted with actual malice in a defamation case like this one.”
Elliott obviously is opposing dismissal.
In his own letter to the judge, Miltenberg stresses his client has alleged Donegan acted with malice, deliberately sought and published anonymous, unsubstantiated “rumors” of criminal sexual conduct and that Elliott’s known proclivities for masochism is “as an indicator that Defendants would or should have had reason to question the false and unsubstantiated rumors before publicly promoting, disseminating, and highlighting them.”
This case not only explores First Amendment issues but also Section 230 of the Communications Decency Act, which affords legal protection to those hosting information written by third parties. The law states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Elliott is taking the position that Donegan, having “contribut[ed] materially” by creating the list and headers, is not a provider of a service but rather a provider of information. Additionally, he argues that she’s not immunized because she “forwarded the List to the Doe Defendants and actively encouraged them to add content.”
Now Google is primed to step forward with its own arguments. There’s every expectation it will, as Elliott not only is demanding access to data but is also requesting the digital giant make preservation efforts that include a discontinuation of its data destruction policies and preserve everything from passwords to records of internet web-browser files.
