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While filing a lawsuit for internet harassment or defamation may seem straightforward, there are many variables to consider before you can file suit. The biggest of these hurdles may also seem like the most obvious: Who are you going to sue?
While this question may seem like it would have an obvious answer, it is not always clear who should be the defendant. Whether the case involves a Google Review, social media harassment, or even an impersonation account, the person responsible might not always be apparent. Even if you don’t know the identity of the person, or persons, responsible for the harassment or defamation, it doesn’t mean you are out of options.
Buckingham explains steps you can take to obtain data necessary to identify these individuals responsible.
What’s a John Doe Lawsuit?
John Doe lawsuits, also known as “suing anonymous profiles,” are legal actions taken against unidentified individuals. These cases typically occur when someone believes they have been harmed or defamed by an anonymous person online, such as through social media platforms or websites. John Doe lawsuits serve as a means for individuals to seek justice and hold anonymous individuals accountable for their actions or statements online.
A John Doe lawsuit is a term of art used by lawyers for any lawsuit that is against an unknown, or anonymous defendant. John Doe suits can arise in many situations, including hit and run crashes, administrative cases, and larger class action cases. These types of suits have become even more prevalent in the realm of internet defamation and online harassment, as more and more people utilize anonymous or fake online profiles to carry out their so-called business online.
In the realm of defamation and online harassment, the purpose of a John Doe lawsuit is to determine the identity of the anonymous, or fake, online profiles or accounts that are responsible for the defamation and harassment. While it may seem that these lawsuits could be straightforward, there are several factors that you have to consider before filing a John Doe lawsuit.
How to Start a John Doe Lawsuit for Internet Defamation and Online Harassment
As with any lawsuit, there are several steps you need to consider and evaluate prior to filing a John Doe lawsuit for internet defamation and online harassment. It’s important to consult with a defamation attorney to help you navigate these steps and make sure that you are set up for success with your lawsuit.
An important component in bringing a John Doe lawsuit is making sure that you have collected and preserved all necessary evidence, including the posts and any information about the accounts. If the person deletes their account, or otherwise alters the statements you are suing over, it can affect your ability to proceed with a lawsuit. The more posts and data points that you have will help you in the long run in identifying the anonymous accounts.
In addition, you will want to collect evidence of your damages as a result of the fake review. Damages can come in many forms, including loss of revenue, clients canceling appointments or reservations, or even additional costs of reputation management and advertisements. In some jurisdictions, you are also able to include damages for investigating the identity of an anonymous poster. Damages are an essential element to any claim that you will bring in your John Doe suit so collecting this evidence up front will help you move more efficiently through your case.
The next step in your John Doe lawsuit is determining the jurisdiction and proper claims. Jurisdiction is the specific location and court in which you will be filing your claim. While jurisdiction in a defamation claim can be tricky to determine, it is slightly more straightforward in a John Doe case.
Since you do not know where the anonymous person or profile is located, your arguments for jurisdiction are limited to:
Bringing the lawsuit in the jurisdiction where you live is the most straightforward path for your John Doe lawsuit, but it is possible, and in some instances preferable, to file your John Doe lawsuit where the platform or servers containing the data you need are located. That will allow you to more efficiently serve your subpoenas to obtain the data you need to identify the Defendant in your case.
The claims you choose to bring against your John Doe are equally important. While you won’t be able to serve an anonymous individual with the Complaint right away, you still want to make sure that you are able to prove every element of your claim against the anonymous speaker. Whether you are suing for defamation, invasion of privacy, or intentional infliction of emotional distress, you want to make sure that you know the elements necessary for your lawsuit and are properly hitting all the elements for these claims.
Once you have your jurisdiction and claims finalized, you are able to move forward with filing your lawsuit and proceeding with discovery to identify your anonymous defendant.
Once the complaint is filed, you are ready to move forward with discovery to obtain the identity of the Defendant. In some jurisdictions, before issuing subpoenas, you will be required to file a motion to authorize discovery, in which you will have to show that you can make a prima facie case for each of your claims against the anonymous defendant. Once you clear this hurdle, you can move forward with discovery.
To determine the identity of the anonymous poster, you will first need to send a subpoena for data associated with the account used to post the fake review. Most platforms collect some form of user information before allowing an individual to leave a review. This includes email addresses, names, phone numbers, and, most importantly, IP addresses used to access their account. These platforms will generally provide this information in response to a subpoena, which will allow you to move forward with identifying an anonymous individual.
The most important data you will receive from the review platform will be the IP address used by the anonymous individual. The other data is generally not verified by the platforms, which means that sometimes you cannot depend on that data. As such, to make the most effective identification, it is necessary to investigate the IP addresses provided.
If you have an IP address, you can generally determine the internet service provider that services the IP address. Once you have identified the ISP, you can then conduct discovery upon them. However, before you can issue a subpoena to an ISP, you will have to get an order from the Court finding that you have made a prima facie case, as discussed above.
Section 551 of the Cable Communications Policy Act prevents any ISP from disclosing customer data without such a determination from a court. So before you will be able to serve your subpoena on the ISP, you will have to ask your Judge for an order determining that you have met your burden to identify, or ‘unmask,’ the anonymous speaker. Once you have that order, you can send that order, with a properly served subpoena, to the internet service provider, and they will produce the data.
The data provided from the ISP should either provide you a name of the person responsible, or at least narrow down the possibilities of who is responsible for the defamatory or harassing statements. Further discovery may be required, however.
Possible Hurdles During the Unmasking Process
There are numerous hurdles that can pop up during the process of trying to identify an anonymous profile. Throughout this process both the platform and the ISP will put the person on notice of your action. In addition, several jurisdictions require that you make some attempt to put the person on notice of your attempts to unmask their identity, including publicly posting information about the John Doe lawsuit.
At any point in this process, the Defendant can appear and anonymously attempt to quash your subpoena or prevent you from proceeding in your attempts to unmask them. If you have followed these steps properly, and have solid grounds for your claims, you should be able to overcome these challenges, but they can cause delays and increased costs along the way.
Identifying the Defendant
Assuming everything has gone to plan, you should be able to identify the Defendant from the data provided by the ISP. Once the Defendant is identified, you have two options for moving forward – you can either amend the complaint and name the defendant, or try to resolve the matter amicably with a demand letter. In certain jurisdictions, you are required to at least send a demand letter to preserve certain aspects of damages. However, there are numerous factors to consider in this approach, including the statute of limitations, and it is best to consult with your defamation attorney prior to making this decision.
Once the Defendant is named in the Complaint, you can move forward with prosecuting your claims and working towards a resolution of your case.
Get In Touch with a Defamation Attorney
While facing anonymous defamation or harassment may seem like an impossible problem to defeat, there are steps you can take to fight back against these profiles and to unmask the people responsible for this anonymous harassment. However, this is an intricate process that requires specific understanding of the process.
If you are facing online defamation or harassment from anonymous individuals, reach out to Andrew Stebbins and Christina Williams of Buckingham’s Defamation practice group to go over your options and evaluate the possibilities of filing a John Doe Lawsuit.
Our attorneys will provide a collaborative, thoughtful approach to your legal needs. We look forward to connecting with you.