If you do not know who defamed you online, you can still sue. The usual path is to file a lawsuit against a “John Doe” defendant and then ask the court for permission to subpoena the website, and then the internet service provider, for information that identifies the anonymous poster. The website itself is generally not the right defendant: federal law shields platforms from liability for content their users post, so the person who wrote the statement is the one you must identify and sue.
Unmasking an anonymous speaker is not automatic. Courts treat anonymous speech as protected by the First Amendment, so you will need to show that your claim has real merit before a judge will order disclosure. Here is how the process works, with particular attention to Michigan law.
Who Can You Sue for Anonymous Online Defamation?
To bring a defamation claim, you need a defendant who made a false and defamatory statement of fact about you and communicated it to others. In the online context, the potential defendants are:
- The author of the post, whether they used their real name, a pseudonym, or a throwaway account. This is almost always the primary defendant.
- Others who created or developed defamatory content, such as a person who wrote a false review on someone else’s behalf.
- The platform or website operator, but only in narrow circumstances. Section 230 of the Communications Decency Act provides that no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 47 U.S.C. § 230(c)(1).
Because Section 230 protects Facebook, Google, Yelp, Reddit, and similar services from liability for what their users write, the practical question becomes how to identify the author. For more on the scope of that immunity, see our explanation of online defamation and Section 230.
Step 1: Preserve the Evidence
Anonymous posts can disappear quickly, and so can the data needed to trace them. Before doing anything else:
- Capture full-page screenshots showing the statement, URL, username, date and time, and any replies
- Record the exact wording of every statement you believe is false; courts require defamation claims to be pleaded with specificity
- Note any clues about identity, such as writing style, insider knowledge, or timing that coincides with a dispute
- Send a preservation letter to the platform asking it to retain account records and IP address logs associated with the post, since providers do not keep this information indefinitely
Resist the urge to confront the poster publicly or report the post for removal before you have preserved it. Deleting the content can make it harder to prove your case and may prompt the author to cover their tracks.
Step 2: File a John Doe Lawsuit
Most courts allow a plaintiff to file a complaint naming “John Doe” or “Jane Doe” as a placeholder for an unknown defendant. Filing the lawsuit is what gives you access to the court’s subpoena power. The complaint should quote the defamatory statements verbatim, explain why they are false, and allege every element of the claim. In Michigan, those elements are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence, and (4) either defamation per se or special harm. Mitan v. Campbell, 474 Mich 21 (2005).
A well-drafted complaint matters more in Doe cases than in ordinary litigation, because the court will likely scrutinize its legal sufficiency before allowing you to learn the defendant’s name.
Step 3: Subpoena the Website, Then the Internet Provider
Identification usually happens in two stages. First, you subpoena the platform for account information, such as the registration email, phone number, and the IP addresses used to create the account or publish the post. Federal law limits what providers can hand over: the Stored Communications Act generally bars providers from disclosing the contents of communications, but it permits disclosure of non-content customer records to any person other than a governmental entity. 18 U.S.C. § 2702(a), (c)(6). Civil subpoenas therefore focus on subscriber and log data, not private messages.
Second, if the platform returns only an IP address, you subpoena the internet service provider that assigned it. Cable operators face an additional restriction: under the Cable Communications Policy Act, they may disclose personally identifiable subscriber information pursuant to a court order authorizing the disclosure, if the subscriber is notified of the order. 47 U.S.C. § 551(c)(2)(B).
Two procedural points often catch plaintiffs off guard:
- Early discovery requires permission in federal court. Under Federal Rule of Civil Procedure 26(d)(1), a party generally may not seek discovery before the parties confer, except when authorized by court order. Because there is no identified defendant to confer with, plaintiffs ask the court for leave to serve early subpoenas.
- Out-of-state platforms may require a subpoena from their home state. In the Cooley case discussed below, the Michigan plaintiff obtained its subpoena to a California web host through a California court.
The First Amendment Tests for Unmasking Anonymous Posters
Anonymous speech is constitutionally protected, but that protection does not extend to defamation. Courts have developed different tests to balance these interests, and the test that applies depends on where you file.
The Dendrite Standard
In Dendrite International, Inc. v. Doe No. 3, 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001), a New Jersey appellate court required a plaintiff seeking to unmask an anonymous poster to attempt to notify the poster, identify the exact statements at issue, show a prima facie case supported by evidence, and persuade the court that the need for disclosure outweighs the speaker’s First Amendment right to anonymity. The court rejected disclosure in that case.
The Cahill Standard
In Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court rejected a lower “good faith” standard and held that a defamation plaintiff must satisfy a summary judgment standard, submitting sufficient evidence to establish a prima facie case for each essential element of the claim, before the defendant’s identity may be disclosed.
Michigan’s Approach
Michigan has declined to adopt either test. In Thomas M. Cooley Law School v. Doe 1, 300 Mich App 245 (2013), the Court of Appeals held that the trial court erred in applying Dendrite and Cahill, reasoning that Michigan’s existing procedures for protective orders under MCR 2.302(C), combined with summary disposition under MCR 2.116(C)(8), adequately protect an anonymous defendant’s First Amendment interests.
The court later added safeguards for defendants who do not know they have been sued. In Ghanam v. John Does, 303 Mich App 522 (2014), it held that when an anonymous defendant is not shown to be aware of the lawsuit, (1) the plaintiff must make reasonable efforts to notify the commenter that they are the subject of a subpoena or motion seeking their identity, and (2) the court must evaluate whether the claims could survive a motion for summary disposition under MCR 2.116(C)(8). In Sarkar v. Doe, 318 Mich App 156 (2016), the court applied that framework and refused to unmask anonymous commenters on a scientific discussion site because the statements were not capable of defamatory meaning. For more background, see our post on anonymous bloggers and the First Amendment in Michigan.
The lesson is consistent across jurisdictions: if the statement is opinion, hyperbole, or otherwise not actionable, you will not learn who wrote it. Courts have noted that internet message boards are often read as containing opinion rather than provable fact.
Watch the Statute of Limitations
Defamation deadlines are short, and the time spent identifying an anonymous poster counts against you. In Michigan, the limitations period for an action charging libel or slander is one year. MCL 600.5805(11). Many courts also apply the single publication rule to online content, so the clock generally runs from the date a statement was first posted, not from each day it remains visible. Firth v. State, 98 N.Y.2d 365 (2002). Our article on the single publication rule covers this in more detail. Waiting to see whether the posts stop is one of the most common and costly mistakes.
Is Suing an Anonymous Defamer Worth It?
A John Doe lawsuit can end with a court order requiring removal of the content, a damages award, or a settlement that includes a retraction. It can also end with an unmasked poster who has no assets, or with a court declining to order disclosure. Before filing, consider:
- Whether the statements are false statements of fact rather than opinion
- How much concrete harm the posts have caused, such as lost customers, contracts, or job offers
- Whether non-litigation options, like a platform policy complaint, could achieve your goals faster; see our guide to removing defamatory content online
- Whether you have enough time left under the statute of limitations to complete the identification process
Talk to an Internet Defamation Lawyer
Identifying an anonymous defamer requires moving quickly on several fronts at once: preserving evidence, drafting a complaint that will survive First Amendment scrutiny, and serving subpoenas that comply with federal privacy statutes and the rules of the state where the platform is located. Mistakes at any stage can cost you the ability to identify the poster at all.
If you are the target of anonymous online attacks, the internet defamation attorneys at Revision Legal can evaluate your claim, send preservation demands, and pursue John Doe litigation to unmask the person responsible. Contact us through the form on this page or call (855) 473-8474.
