Imagine waking up one morning to dozens of text messages and emails from your friends, children, and co-workers sending you to a website with your name on it. The site alleges that you are a sexual predator and have raped numerous women. Your wife is going into a frenzy worried that it might be true, and your boss is calling you asking you to cancel your client meetings for the day. To make matters worse, you see all your family and friends on Facebook commenting on a Facebook ad, promoting the website calling you a rapist. Then, your grandmother unfriends you!
Now, you’re sitting at home racking your brain wondering who in the world could be posting these awful lies? How do you restore your reputation now? Is it possible to sue for defamation if you don’t know who this anonymous poster is? Can you ask the platform that the content was posted to for the identity of the poster?
Well, the answer is.. It’s complicated. Here’s why.
First of all, in most cases, you can’t sue the platform the content was posted to. This is because of Section 230 of the Communications Decency Act, which grants Internet providers immunity from liability for defamatory content posted to their platforms by users, because the platform is not technically the publisher. There are narrow exceptions to liability. For example, copyright infringement, and in cases where the platform actually performs editorial functions to the content. This is rare.
However, this doesn’t mean that you can’t sue for defamation. You still can sue the publisher, once you uncover their identity. You can go about this by obtaining a subpoena for the website to uncover the anonymous user. Don’t know how to go about this? Don’t worry, we do.
Step One: Hire An Experienced Internet Defamation Lawyer to Draft the Defamation Complaint
An experienced internet defamation lawyer will know precisely how to draft a proper John Doe or Jane Doe (the name we give to anonymous defendants) lawsuit that complies with the local rules in the applicable jurisdiction. Slapping together a complaint will not work. The allegations in the John Doe or Jane Doe lawsuit must be stated completely and properly, and including links to the content is a must. See our discussion below about the summary judgement standard that a plaintiff must also meet in order to be successful in the subpoena for an anonymous poster’s identity.
Step Two: Obtain a Subpoena and Give Notice of the Subpoena on the Platform
After filing suit, you must obtain a subpoena for the proper user information that is specific to each platform (see step five for more details). Once the subpoena has been issued by a court, contact the anonymous user through the same Internet medium they are using to defame you, whether it be a website or social media platform, and inform them that their identity is being sought. Make sure to provide relevant case information and inform the user of the right to timely and anonymously file and respond to the request. You may want to consider using a different account than your personal account to do this. Remember, this is a mandatory requirement if you plan to enforce a subpoena to the user in the future. Plus, this step could save you from having to continue with your lawsuit, if the user sees your message and decides to take the content down in fear of being sued. Unfortunately, not every platform allows a user to delete their own content.
Step Three: Make Sure You Have Legitimate Defamation Claims That Can Survive Summary Judgment
Next, consider the facts by performing a “hypothetical summary judgment” test in order to ensure that you will be able to survive a motion for summary judgment. This is a technical legal hurdle, and varies by jurisdiction. This means you need to have proof that you have legally viable claims for revealing the identity of the anonymous author. Be sure that the content in question would actually be considered defamatory by a judge and jury, and not considered to be defensible speech on its face, for example, an opinion would not be an actionable statement. To find the elements of defamation for your state, click here.
Step Four: Balancing Test
Next, perform a “balancing test”. Could you identify the author through any other means? Are there any other circumstances that weight toward protecting the author’s anonymous rights, compared to any harm that would result if the poster’s identity was exposed? Remember, generally speaking there is a First Amendment right to anonymous speech online.
Step Five: What To Ask For in a Subpoena
Your subpoena should, at the very least ask for the following types of commonly collected information – but please note, not all websites collect this information, and not all websites will give it up either!
- Any and all documents and stored information containing the identity, personal info or contact info of the author, party or parties involved with creating or publishing the defamatory content
- Any and all documents, electronically stored information that could lead to the identification, personal info or contact info of the author or authors involved in the posting including:
- Email addresses
- IP Addresses
- Browser type
- Operating System
- Times accessed
- Time on Site
- Service provider
- Any info from Google Analytics, etc.
Having access to this type of information will make it easier for you to uncover the identity of the anonymous user, amend the complaint to include the true poster, and continue to sue them for defamation, seek monetary damages, and/or obtain an injunction to stop the poster.
If you are seeking the help from an experienced Internet defamation attorney, look no further than RM Warner Law. Our lawyers know how to successfully uncover the identity of an anonymous user and take the right steps to help restore your reputation as soon as possible. Get in contact today.
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