Unmasking Anonymous Defendants in Internet Defamation Cases: Recent Developments and Unresolved Issues

Abstract

While the internet provides users with an environment in which socially valuable speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these users are usually known only by the website or internet service provider ("ISP") through which the statements were made, and these third parties generally decline to disclose a user's identity in the absence of a court order compelling them to do so. Faced with a growing stream of applications for such orders, courts have sought to consistently assess them in a way that strikes an appropriate balance between the freedom of expression and privacy interests of anonymous defendants and the reputational interests of plaintiffs.

Currently, there are two ways for plaintiffs to compel third parties to disclose the identity of anonymous defendants: by seeking an equitable remedy of discovery known as a "Norwich order", or by seeking pre-action discovery or production under the applicable rules of civil procedure. Although courts have developed these approaches to strike a more appropriate balance between the competing interests, two unresolved issues remain to threaten that balance. First, while the approaches are similar, they differ with respect to the protection that they afford to the privacy and freedom of expression interests of anonymous defendants. Second, neither approach requires that anonymous defendants be informed of applications for the disclosure of their identities in order to enable them to represent their interests. This article surveys the two approaches, discusses the unresolved issues, and considers how courts may address them.

Keywords: internet, defamation, anonymity, disclosure, privacy, freedom of expression