OPINION OF THE COURT
JOAN A. MADDEN, J.
In this special proceeding, petitioner seeks an order pursuant to CPLR 3102 (c) to compel pre-action disclosure directing respondents Google, Inc. and/or its subsidiary Blogger.com (hereinafter Google) to identify the person or persons (hereinafter the blogger or the anonymous blogger) who posted weblogs on Web sites under Google's operation and control, which contained allegedly defamatory statements about petitioner (hereinafter the blog). Respondent Google essentially has no substantive opposition to the application.
Petitioner alleges that on August 21, 2008, five different weblogs entitled "Skanks of NYC" were posted on Blogger.com together under the uniform resource locator http:// skanksnyc.blogspot.com, which included photographs, captions to the photographs and commentary solely about petitioner.
In opposing petitioner's application, the anonymous blogger contends that petitioner is not entitled to pre-action discovery because she cannot demonstrate a meritorious claim for defamation. The anonymous blogger asserts that the statements on the blog, which appear as captions to provocative photographs which the blogger alleges were posted by petitioner herself,
The determination of whether a statement expresses fact or opinion is a question of law for the court, to be resolved "on the basis of what the average person hearing or reading the communication would take it to mean." (Steinhilber v Alphonse, 68 N.Y.2d 283, 290 .) The Court of Appeals generally analyzes the following factors to distinguish fact from opinion:
Analyzing these factors, this court concludes that contrary to the anonymous blogger's contentions, the statements about petitioner on the blog maintained by Google contain assertions of objective fact that, if proved false, could form the predicate for a defamation claim. (Id.)
As to the first factor, petitioner challenges the use of the words "skank," "skanky," "ho" and "whoring," which appear in captions describing or commenting on photographs of petitioner, many of which are sexually provocative. For example, the caption to a head shot of petitioner in partial profile contains references to petitioner as "a skank bitch," and "acting like ho's [sic]." The caption to two photographs depicting petitioner and a man in positions and postures suggesting sexual acts, describes petitioner as the "Skankiest in NYC" and a "psychotic, lying, whoring . . . skank." Another photograph depicts petitioner laughing with her mouth open, surrounded by other women and a man who is holding his crotch in a suggestive manner; the caption is written as a quote from petitioner, in which she refers to herself as "skanky" and ready to engage in oral sexual activity.
The dictionary defines "skank" as "one who is disgustingly foul or filthy and often considered sexually promiscuous. Used especially of a woman or girl." (American Heritage Dictionary of the English Language [4th ed 2009], skank, available at http:// dictionary.reference.com/browse/skank.) "Ho" is defined as "slang" for a "prostitute," (id., ho, available at http://dictionary. reference.com/browse/ho) and "whoring" is defined as "[t]o associate or have sexual relations with prostitutes" or "[t]o accept payment in exchange for sexual relations." (Id., whoring, available at http://dictionary.reference.com/browse/whoring.) Based on these definitions, the use of those words on the blog can be understood to describe petitioner as sexually promiscuous.
As to the second factor, when the statements on the blog are viewed in context, as captions to sexually provocative photographs
Finally, with respect to the third factor, in the context of the blog as a whole, the explicit use of the words "skank," "skanky," "ho" and "whoring" are reasonably susceptible to a defamatory connotation, since a "communication that states or implies that a person is promiscuous is defamatory." (Ava v NYP Holdings, Inc., 64 A.D.3d 407 [1st Dept 2009]; accord James v Gannett Co., 40 N.Y.2d 415, 419 ; Leser v Penido, 62 A.D.3d 510 [1st Dept 2009]; Rejent v Liberation Publs., 197 A.D.2d 240 [1st Dept 1994].) Reading those alleged defamatory words against the background of their issuance, the thrust of the blog is that petitioner is a sexually promiscuous woman. (See Ava v NYP Holdings, Inc., supra.) The blog is entitled "Skanks of NYC," focuses solely on petitioner, and repeatedly uses the words "skank," "skanky," "ho" and "whoring" in captions accompanying sexually provocative photographs of petitioner. The sexual overtones of the words are underscored by the obviously suggestive nature of the majority of the photographs. (See Leser v Penido at 510-511; Rejent v Liberation Publs. at 241.) Under these circumstances, in the context of the blog at issue, the words "skank," "skanky" and "ho" carry a negative implication of sexual promiscuity, and as such are reasonably susceptible of a defamatory connotation and are actionable. (See James v Gannett Co., supra; Ava v NYP Holdings, Inc., supra; Leser v Penido, supra; Rejent v Liberation Publs., supra.)
Notably, in the context of this specific blog, such words cannot be reasonably viewed as comparable in meaning and usage to the word "jerk" or any other loose and vague insult, as the anonymous blogger urges. The court also rejects the anonymous blogger's argument that this court should find as a matter of law that Internet blogs serve as a modern day forum for conveying personal opinions, including invective and ranting, and that the statements in this action when considered in that context, cannot be reasonably understood as factual assertions. To the contrary, as one court in Virginia has articulated:
Thus, in light of the merits of petitioner's proposed cause of action for defamation, and the materiality and necessity of the requested information, petitioner is entitled to an order pursuant to CPLR 3102 (c) directing respondent Google to disclose the information as to the identity of the anonymous blogger. (See Matter of Uddin v New York City Tr. Auth., supra; Matter of Stewart v New York City Tr. Auth., supra.)
Accordingly, it is hereby ordered and adjudged that the petition is granted and respondent Google, Inc. and/or its subsidiary Blogger.com, shall forthwith provide petitioner with information as to the identity of the anonymous blogger(s), specifically that person's or persons' name(s), address(es), e-mail address(es), IP address(es), telephone number(s), and all other information that would assist in ascertaining the identity of that person or persons.
The law in New York generally applicable to a CPLR 3102 (c) application for pre-action disclosure which requires a prima facie showing of a meritorious cause of action, and the legal requirements for establishing a meritorious cause of action for defamation, appear to address the constitutional concerns raised in this context. (See e.g. Matter of Stump v 209 E. 56th St. Corp., 212 A.D.2d 410 [1st Dept 1995] [CPLR 3102 (c) pre-action discovery denied where petitioner failed to establish that he had a viable claim for defamation, "as he failed to allege evidentiary facts of malice sufficient to overcome the common interest qualified privilege"]; Matter of Gleich v Kissinger, 111 A.D.2d 130 [1st Dept 1985] [pre-action discovery pursuant to CPLR 3102 (c) denied where petitioner "failed to present facts that fairly indicate he has a meritorious cause of action (for defamation)," as statements were expressions of opinion, and protected by either an absolute or qualified privilege]; Admission Consultants, Inc. v Google, Inc., NYLJ, Dec. 8, 2008, at 18, col 1 [Sup Ct, NY County] [CPLR 3102 (c) pre-action discovery denied where petitioner failed to show that it had a meritorious cause of action for libel, as messages posted on the Internet were not statements of fact but personal opinions about petitioner]; Matter of Greenbaum v Google, Inc., 18 Misc.3d 185 [Sup Ct, NY County 2007] [pre-action discovery denied where statements by anonymous blogger were readily identifiable as protected opinion and not reasonably susceptible of a defamatory connotation]; Public Relations Socy. of Am., Inc. v Road Runner High Speed Online, 8 Misc.3d 820 [Sup Ct, NY County 2005] [CPLR 3102 (c) pre-action discovery granted and respondent directed to produce information identifying anonymous Internet user; court held that e-mail statement may be reasonably interpreted as disparaging petitioner in her profession, so as to constitute libel per se, and that the subject of the e-mail was not an expression of pure opinion].)