After reading part one of this series on whether legal action is the right move to respond to negative online comments as discussed in part one, you have decided you need for defamation.  So, how do you figure out who do sue when your tormentor is merely an anonymous handle on some website or an unclaimed blogger?

The Law

As I have said before, you need to know the law and have a little luck.  First, the law, which is suprisingly developed in this area.  

Yes, anonymous speech is protected.  The Federalist Papers anyone?  But like all forms of speech, if anonymous speech goes to far, it can have consequences.

Before an Internet Service Provider (ISP) or site will be forced to give up information about an anonymous person, most states follow what is known as the Cahill test first spelled out in the Delaware case of Doe v. Cahill.  The Cahill test requires a plaintiff, suing for defamation, to make a prima fascia case of defamation to find out the identity from an internet service provider.  In other words if your case is no good and you don’t really have a defamation claim, some judges won’t let you get information from ISP’s or websites.

Once a court decides the plaintiff has enough facts to make an initial showing of a defamation claim and can present facts that may defeat various First Amendment defenses, many courts will require the ISP or website to release the name if anyone fights it.

How it works

Assuming you don’t know who the person is, you would file your own Doe lawsuit.  Once you have a lawsuit on file, you send the necessary subpoena to the site where the anonymous commenter is libeling you or to the hosting service if it is an entire site.  Most site’s terms of use expressly state they cannot guaranty your anonymity and will turn over information in response to a proper subpoena.  The process can be expensive, especially when dealing with multiple states and multiple jurisdictions.

Usually, the information provided in response to the first subpoena is nothing more than in IP address.  It is rare for a site to require a real name and address.  Sometimes, all you get is an “anonymous” email address registered through yahoo, hotmail or gmail, which then requires you to repeat the process with those email services. 

So what is an IP address and what does it reveal?

For a more detailed discussion in plain English from CNET, go here or read this story from ABC News.  The IP address is nothing more than a long string of numbers.   For finding people, the most important part is the first three numbers which usually tell you who the ISP is.  You can discern a general location from the rest of the information and you can find sites online that will give you some of that general, but not exact, information from an IP address. 

For a site, you can check the WHOIS database on a site like Domain Name Tools and find out the IP address or identity.

Once you know the ISP, you then repeat the process by sending a subpoena to them who can then usually reveal the location of the computer or network. 

If it is a company that has multiple people using one server, then you have to go seek the information from the company.  If it reveals a consumer with a wireless router, then you go find that individual and hope the individual does not try to blame the freeloading neighbors.  If it reveals a library or the Starbuck’s you’ve got another issue.

Timing is also important.  Many states have a one-year statute of limitations for defamation claims and many ISP’s and website only store information for a period shorter than that.

A more sinister approach to revealing the identity of the anonymous blogger who has dedicated a site to you or your company can be seen here.  But, do you really want to mimic Glenn Beck?

Similar stories:  Unmasked online critic is judge.  An online defamation lawsuit gone bad from Venkat on the Technology and Marketing Law Blog

Up Next . . .

Anti-SLAPP and defending these suits.