Jaburg Wilk


How To Discover The Identity of An Anonymous Internet Author

Categories: Intellectual Property, Internet and Technology

Find identity of anonymous person who posted online

Suppose you discover that someone has anonymously posted a statement about you online that's not just harshly critical opinion, it's blatantly false. You are considering filing a defamation lawsuit against the author, but there's a problem-the statement was made anonymously and you have no idea who could have posted it. How can you discover the author's true identity? Is that even possible?

As more and more websites allow users to post anonymous comments/statements, this question will arise more frequently. Thankfully, many courts have already tackled this issue and have provided some relatively simple instructions on the process you need to follow. Before you begin this process, it's necessary to first understand the law regarding anonymous speech.

Anonymous Speech & The First Amendment

It is a common perception that when someone posts a comment online without signing their name, they must be up to no good. Maybe they are hiding something. Maybe they know their comments are false and they are attempting to escape responsibility.

Whatever the author's reasons may be, it is very important to begin by understanding that the First Amendment to the U.S. Constitution protects the right to speak anonymously. This is true whether the statements at issue were made on a website or in any other format.

In a classic case that involved an Ohio law prohibiting the distribution of unsigned leaflets, the United States Supreme Court explained that anonymous speech is an honorable activity that is entitled to strong (though not unlimited) protection under the First Amendment:

In addition, it would violate the First Amendment Rights of the authors of the postings to disclose their names without a showing that their statements are false and defamatory. The Supreme Court of the United States has unequivocally held that the right to remain anonymous is protected by the First Amendment. "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all."

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society.

…in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.
McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 1524 (1995) (emphasis added) (citing Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 538 (U.S. 1960)).

Courts Reluctant to Restrain Speech

So the U.S. Supreme Court says that anonymous speech has an "honorable tradition" in American history. It has also said that the First Amendment does not protect defamatory speech. Why are these points important?

These points are crucial because if you are attempting to uncover the name of an anonymous author, you must understand that courts are reluctant to "pierce the First Amendment's veil of anonymity." There is good reason for this-once an anonymous author's identity has been revealed, this cannot be reversed.

To balance these interests, Courts have concluded that a plaintiff seeking to obtain the identity of an anonymous author cannot overcome the author's First Amendment rights simply by claiming they have been defamed. The law requires more-the plaintiff must prove that he has a viable claim which is supported by admissible evidence and that no other reasonable options exist before the First Amendment's shield can be lifted.

So what exactly does the law require a plaintiff to do?

Piercing The Veil-A Three-Step Process

In Arizona, the process for obtaining an anonymous author's identity is explained in Mobilisa v. Doe, 217 Ariz. 103, 170 P.3d 712 (App. 2007). The Mobilisa case involved a plaintiff who sent a private email to his girlfriend using a secure corporate email account. This email was intercepted by an unknown party who then forwarded it from an anonymous email service to several members of the plaintiff's management team, much to the plaintiff's dismay.

The plaintiff subsequently filed a lawsuit against several "John Doe" defendants, and it issued a subpoena to the anonymous email service seeking to learn the true identity of the person who intercepted the private email. The email service objected to the subpoena on the basis that it sought information that was protected under the First Amendment. The trial court ruled that the plaintiff made a sufficient showing to overcome the First Amendment rights of the author. The email service appealed.

The Court of Appeals reversed, finding that the trial court had not done enough to protect the author's rights. In its discussion, the court explained that a plaintiff who wants to obtain the name of an anonymous author must comply with a mandatory three-step process which can be summarized as follows:

Step 1 - Give Notice To The Author

Step 2 - Introduce Evidence Sufficient To Overcome Summary Judgment

Step 3 - Balancing Test

The first step is simple, but often overlooked-it requires a plaintiff to give notice to the anonymous author that his/her identity is being sought. At first, this seems like a bizarre requirement; if the plaintiff does not know who the author is, how can notice be given?

The Mobilisa Court anticipated this issue and explained the requirement as follows:

Consequently, the requesting party should make reasonable efforts to inform the anonymous party of the pending discovery request, including the pertinent case information, and inform that party of the right to timely and anonymously file and serve a response to the request. The requesting party's efforts must include notifying the anonymous party via the same medium used by that party to send or post the contested message. For example, if the message at issue was sent via email, the requesting party must make the notification via a response to the email or separate email to the anonymous sender's address. Similarly, if the message at issue was posted to an internet message board, the requesting party must make the notification via a posting to that same message board.

Mobilisa, 217 Ariz. at 110-11, 170 P.3d at 719-20.

So, a plaintiff who intends to use a subpoena to learn the identity of an anonymous speaker must first provide notice to the speaker in whatever medium the original message was posted. The Mobilisa court did not provide a specific time-frame for this notice, but a good rule of thumb is to post the notice at least several weeks before any further efforts are made to enforce the subpoena. This will ensure that the author has sufficient time to find the notice and obtain counsel if necessary.

It should be noted that many plaintiffs skip this first step. This is a mistake. The Mobilisa court clearly stated that the notice is a mandatory requirement. As such, no matter how legitimate the underlying claim may be, failure to provide notice to the author will likely result in a delay or denial of any subsequent efforts to enforce the subpoena.

The second step is by far the most important and most time-intensive. This step requires the plaintiff to establish that "it would survive a motion for summary judgment filed by [the anonymous speaker] on all of the elements within the requesting party's control-in other words, all elements not dependent upon knowing the identity of the anonymous speaker." Mobilisa, 217 Ariz. at 111, 170 P.3d at 720. What exactly does this mean?

The "hypothetical summary judgment" test requires the plaintiff to show that it has legitimate, legally viable claims, and that that those claims are supported by admissible evidence which would be sufficient to raise a triable issue of fact for trial. In practice, this means that the plaintiff must show the court that it has claims that are timely (i.e., not barred by the applicable statute of limitations), and that the statements at issue are actually capable of a defamatory meaning (assuming the underlying claim is for defamation; this may not always be the case). The best practice is therefore to prepare a brief for the court which explains the client's claims, quotes the specific statement(s) at issue, and explains why those statements are defamatory, if necessary.

Next, the plaintiff must produce evidence that would establish a triable issue of fact sufficient to overcome a hypothetical Motion for Summary Judgment filed by the anonymous defendant. In most cases, this requirement will be satisfied by an affidavit from the plaintiff which identifies the statements at issue and avows that those statements are false. Of course, care should be taken to ensure that the affidavit is true. Any exaggeration or overstatements made by a plaintiff in an affidavit may subject the plaintiff to significant consequences including sanctions under Rule 11, A.R.S. § 12-349, and possibly a counterclaim by the author for abuse of process/wrongful use of civil proceedings.

The final step from Mobilisa requires the trial court to perform a "balancing test" where the need for disclosure is weighed against the author's right to remain anonymous. In most cases, the dispositive issue is whether or not the plaintiff could learn the author's identity through some other, less-intrusive means. For instance, if an anonymous post contained information that only a small group of people would know, the plaintiff may be required to show that it has taken the deposition of each person in the group and each person has denied any involvement in making the statement. In that context, using a subpoena issued to an Internet Service Provider or website host may be the only remaining means of uncovering the author's identity.

Although the balancing test may seem unnecessary, care should be taken to consider other options and explain why they would be futile (or, better yet, that they have already been unsuccessfully attempted). Providing the court with a thoughtful discussion of the reasons why no other alternative is available will significantly increase the likelihood that the court will conclude the Mobilisa standards have been met.

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