End of Internet AnonymityJoel Reidenberg in New York Post, July 18, 2010
By ANNIE KARNI
Last Updated: 11:47 AM, July 18, 2010
Posted: 1:25 AM, July 18, 2010
When Chelsea developer Michael Bolla purchased the Greek Revival townhouse at 436 West 20th Street for $6.1 million in 2008, with plans to gut it and convert the building into five swanky rental apartments, the site became an obsession of the city’s real estate community.
The rents were shockingly high ($20,000 a month?), the tenants were deliciously headline-worthy (Courtney Love, Olivier Sarkozy), and the amenities were over-the-top (a full-time butler from the Waverly Inn and in-house yoga).
The pampered lifestyle might not have been everyone’s cup of tea — but it wasn’t until a little-known blog, Architakes.com, popped up that anyone accused Bolla of anything besides being gaudy.
Last March, the anonymous blogger said Bolla was flouting landmarks laws — raising the height of the building’s roof and installing illegal windows — to pad his own pockets.
“In raising its roofline, Bolla has violated the permit his renovation was issued by the Landmarks Preservation Committee,” the blogger wrote (he has since removed the post). “Bolla appears to be setting the stage for a raised roof, and maximum exploitation of a penthouse he clearly views as a cash cow.” For the next three months, Architakes continued to pound Bolla for supposedly breaking the law.
On March 19, when a larger real estate website, Curbed, linked to the damaging stories, Bolla started fielding concerned calls from the Community Board.
Then, on June 8, Corcoran broker-to-the-stars Susan Hayes wrote Bolla that “I had an interested party who elected not to pursue an apartment at 436 W. 20th Street due to [the] website . . . The postings on that website made it difficult to rent an apartment at the Chelsea Mansion.” The same month, Bolla was audited by the Buildings Department.
It was a lot of headache and hundreds of thousands of dollars down the drain for a developer who said the anonymous claims were dead wrong and misinformed.
But Bolla — known in the trade as a control freak — wasn’t going to let his reputation go without a fight. Last month, he filed court papers that would force the web hosting company of Architakes.com to unmask the blogger’s identity.
If he wins, Bolla will be given the blogger’s name, e-mail logs and phone records — information that might lay the groundwork for a civil lawsuit to seek monetary damages.
A growing number of cases like Bolla’s are now before New York courts — and a precedent is being set, legal experts say, that bloggers and commenters can no longer expect to remain faceless on the Internet.
“In general, people shouldn’t expect much for their anonymity on the Internet,” said Columbia Law Professor Eben Moglen. “We’re currently exploring the social consequences of how much information we give to other people. Once you’ve turned over your information to a blog or to a host company, that information belongs to someone else. In the end, it’s less about our right to be anonymous as it as about another guy’s right to sell us out.”
Bolla’s not alone in using the court to unmask a blogger. In the past month, Manhattan-based lawyer Donato Guadagnoli filed court papers petitioning Google to give up the identity of an anonymous blogger writing “defamatory” posts on the website Ripoffreport.com. And Major League Baseball is going after someone for vulgarity on its message boards.
The case that set the precedent in New York over blogger anonymity came before the court in January 2009, when Canadian model Liskula Cohen petitioned Google to give up the identity of an unnamed blogger who branded her a “skank” and an “old hag” on the website “Skanks in NYC.” A judge ruled in her favor, unmasking the identity of Rosemary Port, a rival model.
“Generally speaking, any information that you put on the Internet when you start a website — that’s information that someone has a right to seek through subpoena,” said Moglen.
Without a subpoena, The Post has learned that the angry online scribe throwing verbal rocks at Bolla is an architect named David Holowka, who lives in a studio apartment on West 19th Street that overlooks the back of the Chelsea Mansion. Call it “Rear Window,” critic-style. Holowka’s lawyer declined comment.
But some argue that bloggers and commentators should maintain a right to express their opinions anonymously online. Why shouldn’t Holowka be able to express his opinion about his neighborhood? And in 1995, the Supreme Court ruled that when it comes to matters of political speech, anonymity is a right.
But according to Moglen, “No one suggets a right to protect anonymity when it comes to defamation.”
Though Holowka’s identity has become known outside the court process, it will still take a court order to legally link him to the blog and allow Bolla’s lawsuit to go ahead.
Bolla’s chances of having the final word look promising.
The trend, according to Joel Reidenberg, founder of the Center on Law and Information Policy at Fordham Law School, has been to “permit unmasking of anonymous bloggers when there is a strong showing that the statement is defamatory and that the victim would be likely to prevail in a defamation lawsuit.”
“Generally people can be traced back to who they are,” Reidenberg said. “Where the victim has a clear and strong case for defamation, they’re entitled to a day in court.”
While New York courts are consistently finding against the anonymous posters in those cases, experts expect that how free we are to post with a secret identity will be decided shortly.
“At some point soon,” Reidenberg said, “the standards the courts will apply is something that might wind up before the Supreme Court.”