traverselegal - January 19, 2012 - Defamation Law
Welcome to Defamation Law Radio. Internet defamation of character is as easy to perpetuate as a blog post, Facebook update, rating submission, or a forum comment. Your online reputation is measured by the websites return as Google search results. Do you know what people are saying and writing about you?
This is Brian Hall an internet law attorney with Traverse Legal, PLC; a law firm representing those involved in defamation actions throughout the United States. Today, I will be answering the question, “how to identify anonymous internet users.”
This particular question comes up fairly often, and the reason being is so many websites today allow internet users to post messages and comments on various boards and social media sites without necessarily having to identify themselves. As a result, if they post something that’s false and about another, it could amount to defamation. And in the event defamation occurs, the person that is defamed wants to bring an action against that internet user.
However, unfortunately, without knowing exactly who that internet poster is, they cannot ask them to stop posting such false information or, more importantly, take down what has been already posted. And while a lawsuit against a John Doe or a Jane Doe is a possibility, it’s always better to know exactly who the defendant actually is; either to lead to an early resolution or in the event that you want to pursue damages against that person via a lawsuit.
So, the question has come up fairly often in courts as to whether or not there should be a standard by which those bringing a lawsuit must meet before an internet service provider has to provide the identity of the anonymous internet poster. A variety of test for requiring that disclosure of the identity of that anonymous internet poster have emerged throughout the past decade or so. In fact, courts throughout the United States, including New York, New Jersey and elsewhere, have provided standards by which litigants must satisfy in order to get the information about the identity of that particular poster.
For example, most of them require that the person bringing the lawsuit, or the plaintiff, make prima facie claim of actionable harm. What this means is they must have the ability to show that there is a prima facie case showing that the elements of defamation can be met, and that amounts to showing that there is, indeed, a false statement of fact about that particular person that has resulted in damages.
There, also, have been the standard requirements to show that a subpoena to the internet service provider requesting the identity of the particular anonymous internet poster will lead to the actual identity of that person and that the identity of that person is, indeed, critical to the lawsuit moving forward. And this is where courts look at the first amendment and make sure that the competing considerations, that are inherent in the first amendment, aren’t overlooked when determining whether or not to provide the identity of that internet poster.
Ultimately, courts will, more likely than not, provide a subpoena to the internet service provider so as to require them to provide the identity of the anonymous poster if, in fact, the plaintiff can establish these prerequisites. That being said, failure to show that there is that compelling need, may result in you not knowing who the anonymous poster is, and you being in a position to not be able to have that information removed or pursue a defamation lawsuit against the particular poster of a defamatory statement. So, in these instances, it’s important to do several things.
First, is to likely speak with an internet lawyer or internet attorney who can advise you regarding what the particular standard is in the state court or federal court in which you would be pursuing a lawsuit. That internet lawyer can identify what defamation cases have held as it relates to the standard for identification of an anonymous internet poster.
After that, it’s important to make sure that, indeed, you do have an actual cause of action for defamation. And that’s making sure that you can meet all elements of the particular State’s defamation law.
Finally, you need to identify who that particular recipient of the subpoenas would be. Namely, this is the internet service provider, such as a social media website or other website host that would provide you with information to sufficiently identify the poster. And once you have identified the poster, then litigation can proceed as it would as if you had named the actual individual as opposed to a John Doe or a Jane Doe defendant.
So, once again, it’s important that you recognize that over the past decade, several tests regarding the compelling of the disclosure of the identity of an anonymous internet user have emerged, and it’s important to identify which one would apply based upon which state you would actually be brining the litigation in. Like I said, an internet attorney can provide this information to you and you would be well served to actually have a conversation with one and likely retain one.
So, once again, this has been Brian Hall, answering your question, “how to identify an anonymous internet poster.”
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