How do I bring a lawsuit for internet defamation and libel?
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Answer:
Defamation is an act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in 'defamatory language'. Libel and slander are subcategories of defamation. Defamation is primarily covered under state law, but is subject to First Amendment guarantees of free speech. The scope of constitutional protection extends to statements of opinion on matters of public concern that do not contain or imply a provable factual assertion.
Libel is published material meeting three conditions:
the material is defamatory either on its face or indirectly;
the defamatory statement is about someone who is identifiable to one or more persons; and,
the material must be distributed to someone other than the offended party; i.e. published, as distinguished from slander.
Two aspects of Internet communication, its ability to make everyone a publisher and its facilitation of anonymous speech have led to a series of cases delineating the right to remain anonymous online.
Among many other things, the Internet serves as the modern equivalent of Speakers’ Corner in London’s Hyde Park, where ordinary people may voice their opinions, however silly, profane, or brilliant they may be. As the U.S. Supreme Court explained in Reno v. American Civil Liberties Union, 521 U.S. 844, 853, 870 (1997), “[t]hrough the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, ... the same individual can become a pamphleteer.” Message boards are an electronic bulletin board system where individuals freely discuss a wide variety of topics by posting comments for others to read and debate. Yahoo!, for example, maintains a message board for every publicly traded company and permits anyone to post messages to it.
The Internet also enables individuals to speak anonymously or through the use of a pseudonym, a phenomenon that has contributed to the atmosphere of open and freewheeling communication on the Web. E-mail addresses may -- or may not -- incorporate a person’s actual name, while chat room participants and posters on message boards often use a “screen name” or “handle” -- similar to the old system of CB radio monikers.
The explosion of anonymous and pseudonymous speech made possible by this communications medium has also led to the use of harsh and intemperate speech that often results in defamation claims. In some cases, the speech involved clearly is actionable, while in others it is merely insulting. Whether the speech involved actually is a “cybersmear” or just “flaming,” this phenomenon has led to the filing of numerous so-called “John Doe” complaints and to efforts by plaintiffs to discover the identities of their online critics. See generally Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation and discourse in cyberspace,” 49 Duke L.J. 855, 858 n.6 (February 2000).
One advocate of using discovery procedures to unmask anonymous critics has urged potential plaintiffs to use discovery first, and only decide whether they want to sue for libel after the critics have been identified and contacted privately. Bruce D. Fischman, “Your corporate reputation online,” http://www.fhdlaw.com/html/corporate_reputation.htm; Bruce D. Fischman, “Protecting the value of your goodwill from online assault,” http://www.fhdlaw.com/html/bruce_article.htm.
Although the Internet gives individuals the opportunity to speak anonymously, it also creates an unparalleled capacity to monitor every speaker and discover his or her identity. Any speaker who sends an e-mail or visits a Web site leaves behind an electronic footprint that can, if saved by the recipient, provide the beginning of a path that can be followed back to the original sender. Thus, anybody with enough time, resources, and interest, if coupled with the power to compel the disclosure of the information, can snoop on communications to learn who is saying what to whom.
As a consequence, Internet service providers (ISPs) frequently receive demands for information about their subscribers. America Online receives on average more than one civil subpoena per day seeking identifying information on its subscribers, and it has been reported that Yahoo! receives one to two such subpoenas per week. See Blake A. Bell, “Dealing with the ‘cybersmear,’” N.Y.L.J., April 19, 1999 at T3.
Because the First Amendment protects anonymous speech, a number of courts have begun to require defamation plaintiffs and others to support the merits of their claims before allowing discovery of the speakers’ identities. The U.S. District Court for the Western District of Washington held that the right to speak anonymously extends to Internet message board postings, and set out a four-part test to determine when a subpoena would be appropriate.
The court said it would examine whether: (1) the subpoena was issued in good faith and not for an improper purpose; (2) the information sought relates to a core claim or defense; (3) the identifying information is directly and materially relevant to the claim or defense; and (4) information necessary for the claim or defense is available from other sources. Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1093 (W.D. Wash. 2001). It added that “[c]ourts should impose a high threshold on subpoena requests that encroach on this right to anonymous speech.” Various state courts have begun to apply a similar test before disclosing the identities of anonymous online speakers. See Dendrite International, Inc. v. Doe, 342 N.J. Super. 134 (N.J. Super. Ct. App. Div. 2001); Immunomedics, Inc. v. Doe, 342 N.J. Super. 160 (N.J. Super. Ct. App. Div. 2001). But see Melvin v. Doe, 49 Pa. D. & C.4th 449 (Pa. 2000) (denying protective order to protect identities of anonymous speakers).
Another case suggests that some of the freewheeling anonymous speech that predominates in chat rooms and at online bulletin boards may not be amenable to defamation claims. Global Telemedia International, Inc. v. Doe, 132 F. Supp. 2d 1261, 1267 (C.D. Cal. 2001). The U.S. District Court for the Central District of California dismissed defamation claims regarding unfavorable comments about a company on an Internet bulletin board because the context would lead a reasonable reader to conclude that posted statements were opinion, not fact.
The court noted that anonymous statements posted in the “general cacophony of an Internet chat-room in which about 1,000 messages a week are posted” about the plaintiff, and which are “full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents” “lack the formality and polish typically found in documents in which a reader would expect to find facts.”
The court dismissed the case under the California anti-SLAPP statute, which permits defendants to seek dismissal of claims arising from the exercise of free speech “in connection with a public issue” if the plaintiff cannot establish probability of success on the merits. The court awarded attorneys’ fees to the defendants. See also ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993 (Cal. Ct. App. 2001).
Finally, in another context, the U.S. District Court for the Northern District of Illinois quashed a subpoena to various ISPs seeking the identities of members of the World Church of the Creator, based on their e-mail addresses. The court held that the forced disclosure of the names of members of the white supremacist organization (to the extent they were not already publicly known) would chill associational rights protected by the First Amendment. Anderson v. Hale, 49 Fed. R. Serv. 3d (CBC) 364 (N.D. Ill. 2001).
