Going after anonymous commenters or posters who make defamatory statements is possible, as illustrated by a Federal Court ruling in Delaware recently. In Getaway.com LLC v. John Does 1-26 (Civ. No. 15-531-SLR, District of Delaware), a federal judge in Delaware allowed a website owner’s defamation lawsuit against 26 anonymous commenters to go forward and issued a subpoena ordering a third party website (which was not sued) where the defamatory statements were posted to turn over account information for the posters of those statements, including their IP addresses. The victim can then subpoena the subscriber information from Internet service providers, based on the IP addresses obtained from the website.
This case illustrates 3 crucial points about pursuing an online defamation claim:
- A victim can ask the court to help uncover the identities of anonymous commenters in order to sue them
- A victim can have access to federal courts even though defamation is a state law claim
- Substitute service of process for the subpoena to issue can be done by posting a notice where the anonymous defamatory statements were made
Getting the court’s help to find out who you can sue
When someone lies about you or your business online, it is very difficult to know how to seek remedy. It is often the case that the person making the statement has taken some effort to remain anonymous. Further, the websites or social media networks where the defamatory statements were made are likely to resist disclosing the identity of the defamers. First, websites have privacy considerations which their business models depend on (just see all the outrage against the social networks for gathering, storing and disclosing user information). Second, websites may not want to cooperate for liability reasons. Therefore, a defamation victim needs a lot of help just to figure out who they must name in the lawsuit to receive a remedy.
The way to sue unknown persons are generally referred to as “John Doe” suits in which you file a lawsuit against John Do” and rely on the court’s power to uncover the true identity of the John Doe. However, courts cannot entertain wild fishing expeditions and subjecting a third party (the website) to unreasonable burdens. In the xxx case, the judged agree that a valid and strong defamation case has been made under Delaware law, therefore xxx can rely on the court’s subpoena power to uncover the identity of the John Does.
Access to Federal Court
There are many advantages to sue in federal courts. One of the many benefit, as evident in the online defamation context and this case, is that a subpoena issued in a federal court is enforceable in every jurisdiction in the country, where as a state court subpoena is not. In practical terms, a federal court issued subpoena for documents can be served on a company thousands miles away. In terms of Internet-based litigation, this is almost a necessity. However, access to federal courts is not easy. A plaintiff can only sue in federal court if the issue is a federal law issue, or if there is “diversity jurisdiction” which means that the plaintiff and the defendants are citizens of different states (there are other requirements). Since defamation is a state law claim, a victim can only gain access to federal courts through diversity jurisdiction. But complete diversity requires that none of the defendants can be from the same state as the victim.
Because it is more likely than not that the defamer has some connection to the victim, it is reasonable to assume that the odds are pretty good that the defamers may be local to the victim and from the same state. This will destroy “complete diversity” and keep the suit out of federal court. However, in Getaway, the judge said that the comments appeared to be non-local in nature, thus it seems more likely that the defamers are not located locally. Therefore, before proven otherwise, diversity jurisdiction can be claimed and the suit can proceed. If one of the defamer is discovered to be from the same state as the victim later, the court will address it at that point.
This case shows that if the defamation claims are presented to the courts properly and carefully, the doors to federal courts will not be closed to victims.
Substitute service for the subpoena to issue can be posted on the web
Based on our constitutional due process rights, courts cannot issue valid judgments or orders against a person unless proper service of process is made, so the person has a fair chance to appear and defend his or her rights against the accuser. For this reason, a subpoena for personal or identifying information of another person cannot be issued unless the person whose information is being sought has a chance to come to court to oppose the request. But how can someone with an unknown identity be served, so a subpoena to uncover their identity be issued? The court in Getaway recognized this circular problem and ruled that it is reasonable for the plaintiff to satisfy the service requirement by posting a notice of the subpoena at the very same place the defamatory statements were posted, because it is the best known place to reach the unknown defamers.
There you have it: Getaway is a great example of how to get through the procedural hurdles to institute a lawsuit against anonymous online posters in federal court. To be clear, suing in federal court can be costly, both in terms of the court cost and the expense of hiring counsel who well versed in technology. But take comfort in the fact that the doors to the justice system is open and accessible when the good name and reputation of your business is on the line.
DISCLAIMER: The views expressed in this publication do not necessarily reflect the views of the author’s employer or clients.
About the Author
High Tech Counsel™: Dafan Zhang is an attorney with a passion for law, technology, and policy. Prior to and concurrent to practicing law, Dafan has been a web/mobile/software developer for over 20 years. Dafan is well accomplished in the technology field having been a pioneer in mobile data systems, web applications, and media systems. Dafan is also an inventor of multiple technological inventions and patent applications, including an Internet-based mobile data aggregation system in the 1990’s (too ahead of the times, unfortunately).
If you or your business encounters legal issues involving technology, please consider seeking counsel from an attorney well versed in your cutting edge technology and business. Dafan is always available to help.