Andrew Allison is a commercial attorney with a passion for legal issues in the online environment. He checks in with Quirk from time to time to ensure that the team is always on the right side of the law.

Much has been sung of the great equalising power of the Internet in that powerful real-world entities can be, and regularly are, very publicly and often incisively held to task by individuals championing consumer justice or evangelising alternate truths and perspectives. Often individuals participate collectively in promoting a cause or point of view, lending vim and vigour to a burgeoning civil society which has proved itself capable of bringing corporate cruisers to submission and, steered by the aggregated wont of the broader morass, or "zeitgeist " as it has become affectionately known, making or breaking personal (reputation) or commercial (brand) goodwill.

Advocates of laissez-faire mechanics, uninhibited dissemination of information and the old maxim “the truth will out” tend to point out that objective truths are those that possess sufficient fidelity, credibility and popularity to survive and prosper notwithstanding the competition of opposing or denigratory contentions. Ordinarily, I am such an advocate. However, I am very quick to recognise that the Internet is rife with truths that simply lack substance and evidence and which otherwise defy reason. John Seigenthaler, an American writer and journalist, was not involved in the assassinations of John F Kennedy and Robert Kennedy. And Richard Gere probably did not have sex with a gerbil. Thankfully, these truths have been largely dismissed as false, but they were both, at one time or another, considered to be objectively true.

The ease and anonymity with which thoughts may be published and truths established in the digital environment is a double-edged sword. We are all quick to laud the accountability that rigorous online discourse brings to bear on companies, public figures and, to a more indirect extent, governments, but that accountability is seldom reciprocal. The promise of anonymity emboldens commentators to be more outspoken and vitriolic, but in the same breath removes fear of consequence.

Canadian model Liskula Cohen is “a psychotic, lying, whoring, still-going-to-clubs-at-her-age skank”, if the blog “Skanks in NYC” (NSFW) is to be believed. Ms Cohen believes otherwise, and is taking Google (which owns Blogger, the platform on which the offending blog is built and run) to court in an effort to extract from them the identity of the blogger in question.

Let’s set the ground rules here: Ms Cohen is not suing Google for defamation or anything else. Ms Cohen is simply seeking a court order compelling Google to divulge certain personal information which is otherwise protected in terms of Google’s Privacy Policy, effectively a contract between Google and the blogger. Clause 7 of Google’s Terms of Service (to which both Google and the blogger are subject) requires the blogger to comply with Google’s Privacy Policy, and the Privacy Policy itself permits Google to share personal information with third parties under the following circumstances:

“We [Google] have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce applicable Terms of Service, including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, or (d) protect against imminent harm to the rights, property or safety of Google, its users or the public as required or permitted by law.”

In terms of the above, Google would be perfectly within its rights to share information with a third party if it believes, in good faith, that such disclosure is reasonably necessary to protect against imminent harm to the rights of the public. Precisely what is meant by “public” is a matter of legal construction, although I would presume that it refers to the public in general and not merely to the rights of individuals on a case-by-case basis. Google is also permitted to disclose information if doing so would be reasonably necessary to satisfy any applicable law or legal process (which would include an order of court).

At first gloss, and from a purely contractual perspective (understood from a general, common law understanding of contractual principles), Google is perfectly entitled to divulge information under the circumstances envisaged above. However, contractual rights and obligations are always subject to the prevailing statutes and laws of applicable jurisdictions, and so the ambit and sovereignty of privacy legislation must not be ignored. Whilst Google may be contractually entitled to disclose certain information, it may be illegal for it to do so.

Which brings in the second element to be considered: Choice of law. Whereas Google’s Terms of Service provide that Californian law will govern the contractual relationship between Google and the blogger, there exists no contractual nexus between Google and Ms Cohen. Ms Cohen is accordingly free to choose the jurisdiction whose laws are most favourable to her case, provided that she is able to establish sufficient grounds (which grounds the relevant court is willing to accept) for her choice. As I am not an American lawyer, I am not in a position to comment on which jurisdiction would best suit her, although you can rest assured that her attorneys are, or have already, engaged in forum shopping to some extent.

Whether or not a court would ultimately rule in favour of Ms Cohen is a matter of speculation: the harm suffered by her (both financially and emotionally) will need to be weighed against the costs to Google of complying with any order of the court to disclose personal information and, more importantly, the extent and significance of any precedent established by the court in ruling against Google. Whilst it might well be in Ms Cohen’s interests to establish the identity of her alleged defamer, the greater public interest will also need to be considered. Will it be to the market’s advantage to sanction the forced disclosure of contractually, and in many jurisdictions legally, protected information? What impact would such a decision have viewed in light of the fundamental human right to privacy? Would this be a desirable outcome across the board, or should such invasions of privacy be permissible subject to prescribed criteria? And if so, who is competent (and brave enough) to impose any such prescriptions?

I believe that Ms Cohen definitely has a case to make, but it will take a bold, or ambitious, court to make a positive pronouncement. And Google will surely appeal any adverse decision, taking such steps as may be necessary to level any and all slippery slopes. I don’t, however, believe that Google will fold or settle straight up, as to do so would invite a veritable torrent of similar requests.  Ms Cohen had best dig in her heels, fill up her pockets and co-opt the assistance of any interested parties, as the Google Goliath will not succumb without a fight. And nor should it. Whether or not Google decides to disclose the personal information of a user to any third party should (from Google’s perspective) be a decision made by Google, in accordance with its standard business practices and Terms of Service – it would be unwise for Google to appear supplicant to the courts, even though this is in itself an inescapable inevitability.

Or perhaps Ms Cohen should grow a thicker skin. She is hardly the first, or the last, celebrity to be unreasonably slandered on the Internet. Of course, whether or not this is fair is another question altogether, and not one for resolution here.