Defamation that takes place online is a big problem in the Internet Age. Chat rooms, message boards, and websites like Facebook and Twitter don’t always require users to provide their real names, which can make finding someone online a real challenge. So what happens when a victim of online defamation doesn’t actually know who defamed them?
Defamation and false light claims are important tools to protect people’s reputations and privacy. They allow individuals who have suffered harm caused by another individual’s lies or half-truths to sue. Generally, one can stop the defamer from defaming, and can many times collect monetary damages if they can prove their reputation suffered measurable losses.
In order to bring a defamation claim, the plaintiff must show that (1) the defendant made a false and defamatory statement concerning the plaintiff and (2) the defendant made an unprivileged publication to a third party. Additionally, in order to recover monetary damages, the plaintiff must show a monetary injury.
In the Internet Age, a lot of defamation occurs online. Social media sites allow users to connect to almost anyone, as well as write to, and about, almost anyone. This has led to a swelling of online defamation lawsuits.
But the biggest problem with defamation that occurs online is identifying the defamer. Many social media sites, group forums, and message boards do not require a user to input their actual name. And many of these sites, in order to protect the privacy of their users, do not make user information available to other users. This creates a cyclical problem—users know they are protected, so they are more cavalier in what they say and write, and when their targets cannot identify them to bring legal action, the offenders continue to defame, sometimes to a greater extent.
Filing a Lawsuit with an Unknown Defendant
Luckily, there is still a simple way to bring a defamation lawsuit, even if you do not know who the defamer is.
Step 1: File a “John Doe” Complaint
The legal system allows a plaintiff to bring what is called a “John Doe suit,” in which the plaintiff sues “John Doe” as opposed to someone’s legal name. This allows the plaintiff the opportunity to find the defendant using the discovery process. However, the plaintiff must still make a reasonable effort to locate the name of the defamer before discovery commences.
Step 2: Subpoenas
Plaintiff may send out subpoenas to the website where the defamation took place (Facebook, for example) seeking the identity of the defamer. Depending on the facts of the case, this may result in a name. Many times, it will result in an IP address. If this happens, the plaintiff must also subpoena the Internet Service Provider (ISP) of that IP address. Depending on the ISP, this may result in a name. But many ISPs, including Time Warner and Comcast, are subject to the Cable Privacy Act, and cannot disclose personally identifiable information.
When it comes to writing these subpoenas, most jurisdictions in the U.S. follow the Dendrite standard, which requires a plaintiff, in a defamation case with an unknown defendant, to show the following:
- an attempt to provide notice to the anonymous defendants that their identities are being sought, and explain how to present a defense;
- quote verbatim the allegedly actionable online speech;
- allege all elements of the cause of action;
- present evidence supporting the claim of violation; and
- prove to the court, on balance and in the particulars of the case, the right to identify the speaker outweighs the First Amendment right of anonymous speech.
See Dendrite Intern., Inc. v. Doe No. 3, 775 A.2d 756 (2001).
Step 3: Motion for a Court Order
Should a plaintiff fail with the ISP, it can move to get a court order requiring the ISP to identify the defamer by releasing the personal information associated with the IP address. The plaintiff must prove to the court that it took all reasonable steps to identify the defamer, and that it failed. This can be shown with emails, WHOIS search results, and other online investigative documents, as well as copies of the subpoenas and the responses to them.
While tougher, it is not impossible for someone who has been defamed online to bring a successful lawsuit against an unknown defamer. Because of the extra procedural hurdles involved, it is important to have a good attorney who knows the law and understands how the law operates in cyberspace. If you have been defamed online, or have been accused of defamation, contact one of our expert Internet Defamation Attorneys at 855-473-8474.