We prosecute claims of internet libel and defamation.

On an internet website some anonymous John Doe posts false and defamatory statements about your company including allegations of fraud and criminal activity. When prospective customers “google” your company, this libelous report is prominently listed with a link to the defamatory report.  You inform the host of the website on which the report is posted that the information is false and defamatory.  You are told that even if the information is adjudged defamatory, the website will not remove the posting.

Further you are informed that the operator of the website is immune from legal liability. Congress decided to treat websites that provide a platform for third parties to publish statements differently from newspapers, television and other media. An “interactive computer service,” unlike a newspaper does not publish information. Provided it is passive, the interactive computer service merely provides a venue, like a tree on the common of an 18th century village square, on which people, anonymously or not, post their bills of complaint. So provided it does not provide any content, the website is immune and cannot be sued. See 47 U.S.C. § 230 (c)(2).

The website operator also informs you that unless you get a court Order they will not provide you with any information they may possess about the anonymous person who falsely labeled you a crook.

To a business that values its reputation for integrity it is extraordinarily frustrating that in today’s internet-wired world anonymous defamers have a constitutional right to express their views and opinions anonymously, no matter how offensive they may be.

So the false and defamatory statement about your company is prominently listed on internet search engines like Google, Yahoo and Bing with a link to the website posting of the statement.  Under the law you cannot sue the website and the defamer has a right to speak anonymously. And, you learn that even if you can determine John Doe’s identity to sue him, under the First Amendment, the so-called prior restraint doctrine, a Court will not enjoin him from defaming you with some future speech.

You are not completely without legal recourse

We recently successfully obtained a preliminary injunction against a John Doe who had posted a libelous screed on a consumer complaint website.  The Injunction restrained Doe from republishing the libel he had posted.  While the consumer website has not taken down the libel, we served Google with a certified copy of the preliminary injunction and following the search engine’s policies, the libelous report no longer is listed on the Google search engine with a link to the libel. 

Understand such success is not likely for negative reports that are highly critical, factually inaccurate and misleading but do not constitute libel, such as false statements of criminal activity.

The difficult legal hoops through which a defamed business must jump

Courts will not issue an injunction unless it has the power and authority to hold the enjoined party in contempt for violation of its Order. So the first task is to obtain a Court Order requiring the website to identify the name, address and contact information of the anonymous speaker. If successful at getting that information, depending on the usual factors a Court may or may not be able to exercise jurisdiction over the individual.  Assuming the individual is subject to personal jurisdiction, the Court may then render judgment against the defamer including an injunction restraining him from republishing what the Court determines to be defamatory.

Generally speaking the First Amendment protects the right to speak anonymously. Watchtower Bible & Tract Soc’y of New York v. Village of Stratton, 536 U.S. 150, 166-67(2002).  Speech over the internet carries the same protection. Reno v.ACLU, 521 U.S. 844,870(1997).

The right to maintain one’s anonymity however is not absolute when the speech is actionable.  Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245–246 (2002) (“The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation…”.) See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (demonstration of a compelling interest); Mobilisa Inc. v. Doe, 217 Ariz. 103, 170 P.3d 712  (Ct. Appeals Ariz. 2007); Pilchesky v. Gatelli, 12 A. 3d 430  2011 PA Super 3(PA. Superior 2011); Doe No. 1 v. Cahill, 884 A.2d 451 (De.2005); Dendrite Int’l, Inc. v. Doe, No. 3, 342 N.J.Super. 134, 775 A.2d 756 (App.Div.2001).

Since the website itself is immune, to get information about John Doe, the website provider must be subpoenaed as a third party witness.  Unless the website provider agrees to voluntarily appear in response to an out of state subpoena, a separate action in the website provider’s home state will be necessary.

There are two federal statutes, The Cable Communications Policy Act, 47 U.S.C. § 521 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq., authorizing disclosure by the website of subscriber information upon issuance of a court order provided, under only the Cable Act, the anonymous subscriber, or poster in this instance, is given notice of the order.

Giving the anonymous author prior notice and an opportunity to contest the disclosure of his identity balances two competing, fundamental interests.  The First Amendment must bend when the speech causes harm. From the handful of cases brought around the country, a standard seems to be evolving.

Courts should require the third party website provider to disclose the identity of an anonymous speaker if: (1) the issue of the anonymous speaker’s identity goes to the heart of the case, (2) disclosure is necessary to prove the issue because the party seeking the information is likely to prevail on all other issues, and (3) all other means of proving the issue have been exhausted.

To give the anonymous party a right to contest the disclosure, courts will likely condition the disclosure on prior notice to the anonymous speaker enabling him to contest disclosure of his identity.