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.

The John Doe Subpoena Process

The most reliable legal mechanism for unmasking an anonymous online defamer is the John Doe subpoena. The process begins with filing a defamation lawsuit against an unnamed “John Doe” defendant, using available identifying information — a username, an IP address, an email address — as placeholders. Once a lawsuit is filed and a case number is assigned, the plaintiff’s attorney can petition the court for leave to issue a third-party subpoena to the online platform or the internet service provider commanding disclosure of subscriber information associated with the account that made the defamatory post.

Courts in most jurisdictions require the plaintiff to meet a threshold showing before early discovery is permitted. The threshold varies by jurisdiction and circuit, but typically includes: (1) a prima facie showing of defamation; (2) a demonstration that the identity information is necessary to proceed with the case; and (3) a demonstration that the identity is not available through other means. Some courts also require that the anonymous defendant be given notice of the disclosure motion and an opportunity to object before the court rules. This notice requirement — when it applies — gives the defamer a window to file an anonymous motion to quash, which courts then evaluate on the merits.

First Amendment Protection for Anonymous Speech

Anonymous speech has a long and recognized constitutional history. The Supreme Court in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), held that the First Amendment protects the right to publish anonymous pamphlets. Lower courts have extended this protection to online anonymous speech. But the protection is not absolute, and it does not immunize genuinely defamatory speech — the anonymous speaker simply cannot be pursued until she is identified.

Courts have applied varying standards to determine when the plaintiff’s interest in identifying a defamer outweighs the defendant’s interest in anonymity. The most rigorous standard — adopted in some form by Delaware, New Jersey, and several other states — requires the plaintiff to make a “substantial basis” showing: evidence sufficient to survive a motion for summary judgment on each element of the defamation claim before disclosure will be ordered. Less demanding courts require only a “good faith” showing that a legitimate claim exists. Selecting the correct forum, or accounting for the forum’s standard when evaluating the merits of a disclosure motion, is a critical strategic decision that requires experienced counsel.

Using Cyber Investigators and Digital Forensics

Legal process is not the only route to identification. Cyber investigators can often identify anonymous posters through analysis of publicly available information — a technique sometimes called OSINT (open-source intelligence). Even when a user creates an anonymous account specifically for the purpose of making defamatory posts, behavioral patterns, writing style, metadata, and associations with other accounts may allow an investigator to establish the poster’s identity without resorting to subpoena.

OSINT investigation is particularly valuable in two situations: first, where the defamatory content appears on a platform whose terms of service explicitly prohibit cooperation with disclosure requests except pursuant to valid legal process; and second, where the plaintiff wants to identify the defendant before filing suit in order to ensure the defendant is subject to the court’s jurisdiction and is not judgment-proof before investing in litigation.

Even where cyber investigation identifies a likely poster, independent corroborating evidence — subpoenaed records, device metadata, account linkage — is typically necessary to support the burden of proof in a civil defamation case. Cyber investigation results should be treated as intelligence, not evidence, until they can be corroborated through admissible sources.

What Happens After Identification

Once the anonymous defamer is identified, the litigation proceeds as a conventional defamation case. The plaintiff amends the complaint to name the defendant, serves process, and the case moves through discovery and toward trial or settlement. The fact of anonymity — the defendant’s deliberate choice to hide her identity while making false statements — may be relevant to the damages analysis. Courts have found that a defendant who creates anonymous accounts specifically to evade accountability for defamatory posts exhibits a degree of deliberateness that supports enhanced damages for willful or malicious conduct.

Identification also enables injunctive relief. Once the poster is named and served, the court can order her to remove the defamatory content and to refrain from making future defamatory statements. Violation of such an order constitutes contempt of court, which carries its own enforcement mechanisms. This combination — damages plus injunction — is often more valuable to the plaintiff than damages alone because it results in actual content removal rather than merely a money judgment.

If you have been defamed online by an anonymous poster and need to identify and pursue the responsible party, Revision Legal’s defamation and internet law attorneys can guide you through the process. Contact us through the form on this page or call 855-473-8474.