The Internet has provided new avenues, audiences, and protections for anonymous speakers. For whistleblowers and victims of abuse, internet anonymity can allow them to tell their stories and bring information to the general public, while protecting their privacy and limiting exposure for reprisal. But internet anonymity is a double-edged sword. And if you are an individual or a business targeted by an unidentified individual posting false, salacious gossip intended to harm your interests, Internet anonymity can leave you feeling like you are a victim without recourse.
Believe it or not, this is not a new problem. While the cloak of secrecy afforded by the web has arguably made the problem more prevalent, the law has long provided a way forward for victims of anonymous misconduct, including defamation.
Generally speaking, the tort of defamation involves (a) a publication (either orally or in writing, including on the Internet) that is (b) provably false, (c) disparaging, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damages. Taus v. Loftus (2007) 40 Cal.4th 683. When speech fits this definition, but you don’t know the identity of the speaker, California law allows you to file a lawsuit against a fictitious defendant (called a “John Doe”), as a placeholder, and then seek early discovery in an attempt to learn the identity of your anonymous accuser.
Normally, a plaintiff is not permitted to start discovery in a lawsuit until after a defendant has been formally notified of the lawsuit. Obviously, this is not possible in a situation when the defendant’s identity is unknown, so California courts allow plaintiffs to seek discovery earlier “for good cause shown.” Bernson v. Browning-Ferris Indus. (1994) 7 Cal.4th 926, 930 n.2. In the case of anonymous Internet defamation, this early discovery often takes the form of subpoenas to the third party content hosts (e.g. Yelp, Facebook, Twitter, Reddit, etc.), which provided the platform for the anonymous defamation, and who presumably can provide user information about the publisher.
To establish “good cause shown” for these types of early subpoenas, a plaintiff must: (1) make reasonable efforts to notify the defendant(s) of plaintiff’s attempt to lift the shield of anonymity by discovering defendant’s identity, and (2) demonstrate to the court that the anonymous speaker’s speech is in violation of the law. Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1171–72; Glassdoor, Inc. v. Super. Court (2017) 9 Cal.App.5th 623, 634; ZL Techs, Inc. v. Does 1-7 (2013) 13 Cal.App.5th 603, 614. When a plaintiff has no means of providing such notification to anonymous defendants, or when it would be “unrealistic” or highlight the allegedly defamatory material to do so, California courts have placed the burden of notification on the subpoenaed website host or message board sponsor – meaning that it would be the host’s choice whether to notify the publishing party of its intent to provide the subpoenaed information. Yelp Inc. v. Superior Court, 17 Cal. App. 5th 1, 14 (2017).
If you have been the victim of an anonymous defamatory attack that has damaged your reputation, your job, or your emotional health, you have options. Our attorneys would be happy to speak with you to learn how we can help.
Karin Sweigart handles First Amendment and defamation matters as Counsel at Dhillon Law Group.
