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finding identity in defamation cases

Finding Identity in Internet Defamation Cases

By John DiGiacomo

Anonymity is a blessing and a curse, allowing us to hide behind our computers and electronic devices, creating whatever image and identity we wish to portray. “Screen names” offer a form of protection to Internet users, so when an anonymous defamatory post is made, tracking down the user can feel like an almost impossible task.

Suing a ‘screen name’ for defamation is a fruitless endeavor, and due to privacy policies, online service providers rarely provide the actual identification of the user to the victim. This leaves two solutions: (1) requesting a court order requiring the forum to provide the true identity behind the online personification and screen name; or (2) hiring a ‘cyber investigator’ who will determine the IP address (Internet protocol) the defamatory comment was made from. From there, one can subpoena an ISP (Internet service provider) for subscriber details.

Requesting a court order for the identity of anonymous users to be made known can be a challenge in and of itself. In many cases, First Amendment challenges have been raised on the issue, and case law decisions have been mixed as to whether or not the information should be released as a result. Decisions range from releasing the identity to protect public figures, to refusing to force the release of the individual identity until the plaintiff has been able to prove that the statements made are actually defamatory or untrue.

It is important to know the case law for your area, as this will help in determining whether or not the court will order a release of the requested information. For example, in Pennsylvania the court ruled there was a four-factor test to be met for the information to be released:

  1. Reviewing court ensures that the John Doe, Defendant receives proper notification of the petition to disclose his identity and reasonable opportunity to protest;
  2. Plaintiff presents sufficient evidence establishing a prima facie (true on its face) case for all elements of a defamation claim;
  3. Plaintiff submits an affidavit asserting the identity is sought in good faith, is unavailable by other means, is directly related to the claim, and is fundamentally necessary to secure relief; and
  4. The Court must expressly balance the Defendant’s First Amendment rights against the strength of the Plaintiff’s prima facie case.

In another case based out of New York, the Court held that the identity information should be released because the Plaintiff had sufficiently established their cause of action. Here, a modified version of point two from the above test was all that was required by the Court to grant the request.

The varying case law can make it difficult to determine the correct course of action. For more information about what options are available and how you can identify an anonymous user, contact Revision Legal’s Internet Defamation attorneys through the form on this page or call 855-473-8474.

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