Increasingly over the past 10 years, we have been asked to utilize the civil litigation process to unmask anonymous Internet posters who use various forums or chat rooms to engage in defamatory and highly inappropriate commentary about businesses and their employees. Our first encounter with this turned out to be a former employee who had been discharged and utilized a community chat forum to accuse her former employer, and two of its employees, of engaging in inappropriate conduct in the workplace. As in many of these cases, the forum utilized was located in the State of California. To gain access to out-of-state records, we instituted a “John Doe” action in the State of West Virginia and a similar action in the State of California to enforce a subpoena which required the chat forum to disclose the Internet address of the poster. This was a lengthy, time consuming and somewhat expensive process. Ultimately, however, we were able to track the Internet address back to an Internet service provider in the State of West Virginia. A West Virginia subpoena was then issued on that service provider which identified the individual customer for that particular Internet address. In this case, it turned out to be a former employee who had been discharged by her employer.
Since that time, there have been a number of very similar cases requiring the same approach to discovery. We have also had situations where individuals have been defamed by anonymous posters on various forums ranging from those dealing with university students to those which were commonly used as chat and discussion areas for local communities. In another situation where threats of violence were involved, we were able to track the poster back to a common computer at a local university. In cooperation with the university’s police force, we were able to identify the individual who had logged on to that particular computer at that particular time and made the inappropriate threats of violence. Once this was brought to the university’s attention, they dealt with this in a most appropriate and swift manner.
The law has been gradually evolving as to what approach may be utilized to unmask anonymous posters while at the same time protecting the First Amendment right to comment and make reasonable and appropriate statements regarding businesses and individuals. In 2001, a New Jersey appellate court in Dendrite International, Inc. v. Doe No. 3, 775 2d 756 (New Jersey Superior Court Appellate Division 2001) set out the following four-part test for a plaintiff in cases of this type:
1. The plaintiff must make a reasonable effort to notify the defendant that it is seeking to identify the defendant in the lawsuit to allow the defendant an opportunity to oppose the request.
2. Plaintiff must set forth the actionable speech.
3. Plaintiff must clearly set forth the legal claim, including its statutory or common law basis.
4. Plaintiff must identify sufficient prima facie evidence of each element of the claim.
The Dendrite Court thus suggests that a reviewing court should evaluate these factors to balance or weigh the defendant’s right to anonymous speech against the plaintiff’s need for disclosure. In 2005, a Delaware case entitled Doe Number One v. Cahill, 884 Atlantic Reporter 2d 451 (Del. 2005), in part rejected the Dendrite balancing test and established a summary judgment type of proceeding to consider the balance of interest between that of an anonymous poster and that of an individual business which has been defamed. Since that time, most federal district courts or state supreme courts have followed either Cahill or Dendrite. However, the majority of states have not yet established a clear standard as to the proper approach in “John Doe” cases.
The impact of social media is now so substantial that businesses and individuals need to carefully monitor and protect their online reputations. Legitimate and well-founded complaints should be treated with great respect. However, clearly false and defamatory statements require prompt action by a business or individual lest that business or individual’s reputation be ruined or damaged by a medium that is readily available to your customers and potential customers.
This article was authored by David A. Barnette, Jackson Kelly PLLC.