How Can I Obtain the Name of an Author Who Has Defamed Me?
Suppose you just finished reading the long section about "So, you want to sue so-n-so's site?", and you realize that the law protects this site from such cases and does not allow you to sue the website's administrators for the so-called published content by a user on the site. What do you do? Of course the law does NOT protect the original author, and thus you are free to sue that person if you wish, but how can you get the name of the person who posted the comments anonymously?
Out of the millions of comments posted everyday on the web, once in a while an admin will receive a request asking to reveal the true identity of someone who posted a comment. Sometimes these requests include a subpoena and sometimes they don't. Sometimes these requests come from an attorney and sometimes they are from an average citizen, business owner, etc.
Because most people are not familiar with the legal issues involved and because most sites regard the privacy rights of their users extremely important, I will explain the general rules about how privicy policies and how the true identity of a site user may be obtained. This section also provides answers to the following questions:
Can a user remain anonymous and protect their privacy?
Will a site disclose the real name of an author?
How can lawyers obtain information about an author?
THE FIRST AMENDMENT RIGHT TO FREE SPEECH INCLUDES THE RIGHT TO REMAIN ANONYMOUS.
First of all, it is important to understand a fundamental point - the First Amendment right to free speech includes the right to remain anonymous. That's not just my view, it is a principle the United States Supreme Court has recognized over and over again; "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42, 115 S.Ct. 1511, 1516, 131 L.Ed.2d 426, 436 (1995).
Why does this matter? Because people who ask us to voluntarily disclose the real name of an author need to appreciate this is similar to walking into a doctor's office and asking to see someone else's medical records. This information is private and can't just be handed over upon request. Rather, you have to follow a series of steps to be sure that the affected party is informed of the request so he/she can take steps to protect their privacy. I'll explain what those steps are later below.
THE RIGHT TO REMAIN ANONYMOUS IS NOT ABSOLUTE.
Of course, the right to remain anonymous is NOT absolute - you can lose your right to privacy if you abuse it. For example, if someone posts a death threat against the President, the First Amendment will offer no protection. Furthermore, the First Amendment does not protect statements which are false and defamatory.
YOU CAN'T OBTAIN AN AUTHOR'S NAME JUST BY CLAIMING THAT SOMETHING IN A REPORT IS FALSE OR INACCURATE
Although the First Amendment does not protect defamatory speech, this does not mean that you can contact the a said site and obtain the author's name just by claiming that something in their comments is false or inaccurate. Most site admins will not dissolve the First Amendment rights of their users based on a unilateral allegation that something in theiry comment is false. These issues must be presented to the courts so that a judge can review the matter and decide what to do.
So, what does this mean? What do you have to do in order to get the real name of an author?
The Arizona Court of Appeals recently answered that question as follows:
I hold that to obtain a court order compelling discovery of an anonymous internet speaker's identity, the requesting party must show that: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request, (2) the requesting party's cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identity of the anonymous speaker, and (3) a balance of the parties' competing interests favors disclosure.
Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (Ariz.App. 2007) (if you are interested, you can read the full Mobilisa case here: http://www.scribd.com/doc/76263546/Mobilisa-v-Doe-217-Ariz-103-170-P-3d-712-App-2007
If you want to obtain the identity of an author, you must do some or all of the following:
1.) Obtain a subpoena from the county courts in which the site is operated in. Fancy legalese or magic words are NOT required and probably appreciate it if you would keep your request as SHORT and CLEAR as possible. In general, unless you need something more, your subpoena can simply say: "Please produce all author information for the author of comment #123456." In general most sites track individual postings by their comments so be sure to include the comment ID# with any subpoena you send. Also, be sure to include your email address with your subpoena. Failure to include the proper information may significantly delay the processing of your request.
NOTE - Most site admin's are happy to accept via email/fax. You can send a copy to the site owner or perhaps if they have a fax listed you may be able to fax a copy? However in order to avoid any confusion, service of a subpoena by fax/email is NOT complete unless and until you receive an email response from the site admin confirming that they have received your subpoena. If you do not receive a confirmation email, then you should re-send your subpoena or, alternatively, you serve it your self if you live in the area?
2.) As soon as you have sent us your subpoena, you should post a notice to each comment for which you are seeking the author's information. Site admin's will not do this for you, so don't bother to ask. This notice must explain that you have initiated a court proceeding in an effort to learn the author's identity and it should provide a case number and name/address of the court so that the author can appear and defend the case if necessary. Although the exact form and contents of the notice are up to you.
3.) After allowing a reasonable amount of time for the author to appear (which may or may not occur), the site admin should review your subpoena and determine whether or not they believe the statements in the report are actionable. In other words, if the statements are very clearly limited to nothing more than the author's opinions (which are generally entitled to First Amendment protection), then it is likely that the site admin will object to your subpoena. On the other hand, if its very clear that the report contains statements which might be defamatory (assuming they are false), then the site admin may choose to except your subpoena in which case they will provide you with any records they have unless the author brings his/her own objection or Motion to to the table.
4.) If a stie owner or the author does object to your subpoena, you must bring a motion in the issuing court asking the court to determine that you have complied with the standards set forth in Mobilisa. Depending on the nature of the statements, the position of the author (if any) and the arguments in your motion, the site owner/admin may or may not oppose your motion. If the court reviews your motion and finds that you have satisfied Mobilisa's requirements, then they will provide you with the requested information.
If this seems like a hassle, it is. I don't make the law and I'm not in a position to make a judgment as to whether or not you are entitled to overcome the First Amendment rights of an author. Those decisions must be made by the courts, and if you have a valid claim, jumping through these hoops should not prove very difficult or costly.
Out of the millions of comments posted everyday on the web, once in a while an admin will receive a request asking to reveal the true identity of someone who posted a comment. Sometimes these requests include a subpoena and sometimes they don't. Sometimes these requests come from an attorney and sometimes they are from an average citizen, business owner, etc.
Because most people are not familiar with the legal issues involved and because most sites regard the privacy rights of their users extremely important, I will explain the general rules about how privicy policies and how the true identity of a site user may be obtained. This section also provides answers to the following questions:
Can a user remain anonymous and protect their privacy?
Will a site disclose the real name of an author?
How can lawyers obtain information about an author?
THE FIRST AMENDMENT RIGHT TO FREE SPEECH INCLUDES THE RIGHT TO REMAIN ANONYMOUS.
First of all, it is important to understand a fundamental point - the First Amendment right to free speech includes the right to remain anonymous. That's not just my view, it is a principle the United States Supreme Court has recognized over and over again; "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42, 115 S.Ct. 1511, 1516, 131 L.Ed.2d 426, 436 (1995).
Why does this matter? Because people who ask us to voluntarily disclose the real name of an author need to appreciate this is similar to walking into a doctor's office and asking to see someone else's medical records. This information is private and can't just be handed over upon request. Rather, you have to follow a series of steps to be sure that the affected party is informed of the request so he/she can take steps to protect their privacy. I'll explain what those steps are later below.
THE RIGHT TO REMAIN ANONYMOUS IS NOT ABSOLUTE.
Of course, the right to remain anonymous is NOT absolute - you can lose your right to privacy if you abuse it. For example, if someone posts a death threat against the President, the First Amendment will offer no protection. Furthermore, the First Amendment does not protect statements which are false and defamatory.
YOU CAN'T OBTAIN AN AUTHOR'S NAME JUST BY CLAIMING THAT SOMETHING IN A REPORT IS FALSE OR INACCURATE
Although the First Amendment does not protect defamatory speech, this does not mean that you can contact the a said site and obtain the author's name just by claiming that something in their comments is false or inaccurate. Most site admins will not dissolve the First Amendment rights of their users based on a unilateral allegation that something in theiry comment is false. These issues must be presented to the courts so that a judge can review the matter and decide what to do.
So, what does this mean? What do you have to do in order to get the real name of an author?
The Arizona Court of Appeals recently answered that question as follows:
I hold that to obtain a court order compelling discovery of an anonymous internet speaker's identity, the requesting party must show that: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request, (2) the requesting party's cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identity of the anonymous speaker, and (3) a balance of the parties' competing interests favors disclosure.
Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (Ariz.App. 2007) (if you are interested, you can read the full Mobilisa case here: http://www.scribd.com/doc/76263546/Mobilisa-v-Doe-217-Ariz-103-170-P-3d-712-App-2007
If you want to obtain the identity of an author, you must do some or all of the following:
1.) Obtain a subpoena from the county courts in which the site is operated in. Fancy legalese or magic words are NOT required and probably appreciate it if you would keep your request as SHORT and CLEAR as possible. In general, unless you need something more, your subpoena can simply say: "Please produce all author information for the author of comment #123456." In general most sites track individual postings by their comments so be sure to include the comment ID# with any subpoena you send. Also, be sure to include your email address with your subpoena. Failure to include the proper information may significantly delay the processing of your request.
NOTE - Most site admin's are happy to accept via email/fax. You can send a copy to the site owner or perhaps if they have a fax listed you may be able to fax a copy? However in order to avoid any confusion, service of a subpoena by fax/email is NOT complete unless and until you receive an email response from the site admin confirming that they have received your subpoena. If you do not receive a confirmation email, then you should re-send your subpoena or, alternatively, you serve it your self if you live in the area?
2.) As soon as you have sent us your subpoena, you should post a notice to each comment for which you are seeking the author's information. Site admin's will not do this for you, so don't bother to ask. This notice must explain that you have initiated a court proceeding in an effort to learn the author's identity and it should provide a case number and name/address of the court so that the author can appear and defend the case if necessary. Although the exact form and contents of the notice are up to you.
3.) After allowing a reasonable amount of time for the author to appear (which may or may not occur), the site admin should review your subpoena and determine whether or not they believe the statements in the report are actionable. In other words, if the statements are very clearly limited to nothing more than the author's opinions (which are generally entitled to First Amendment protection), then it is likely that the site admin will object to your subpoena. On the other hand, if its very clear that the report contains statements which might be defamatory (assuming they are false), then the site admin may choose to except your subpoena in which case they will provide you with any records they have unless the author brings his/her own objection or Motion to to the table.
4.) If a stie owner or the author does object to your subpoena, you must bring a motion in the issuing court asking the court to determine that you have complied with the standards set forth in Mobilisa. Depending on the nature of the statements, the position of the author (if any) and the arguments in your motion, the site owner/admin may or may not oppose your motion. If the court reviews your motion and finds that you have satisfied Mobilisa's requirements, then they will provide you with the requested information.
If this seems like a hassle, it is. I don't make the law and I'm not in a position to make a judgment as to whether or not you are entitled to overcome the First Amendment rights of an author. Those decisions must be made by the courts, and if you have a valid claim, jumping through these hoops should not prove very difficult or costly.
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