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Journal of Technology Law & Policy

Document Type

Article

Abstract

Defamation on the Internet is a serious problem with real world consequences for victims. The effects of online defamation are growing more severe as Google and other search engines become more effective at retrieving information about people. The problem is amplified because federal law immunizes Internet companies and website owners from liability for the defamatory content others post on their websites even when it is brought to their attention. Many academics have proposed solutions with little practical success. The failure of academic commentators to propose solutions that are actually implemented results from their unrealistic expectation that Congress generally cares what law professors and law students have to say.

In the absence of a solution that restores liability to Internet intermediaries, plaintiffs are taking direct action using the only tool left available to them: John Doe lawsuits. In these suits the defamation plaintiffs seek to expose the party who posted the content as a way to silence and deter the poster. Rather than suing the websites to take down the material, plaintiffs instead subpoena the websites to obtain the real identity of the online critic.

This Article recognizes both the problem of online defamation and the potential dangers of public figures and corporations using subpoenas to expose and silence online critics. A court being asked to compel disclosure should first determine the status of the plaintiff before issuing a subpoena. This Article advocates the adoption of a standard that makes it easier to issue subpoenas against Internet Service Providers (ISPs) to reveal the identity of anonymous posters when the plaintiff is a private figure while retaining and developing more difficult standards when the plaintiff is a public figure. This modest solution requires common law judges, rather than Congress, be forced to take action to confront the problem.

Part II explains the problem of online defamation, why defamation law itself is not being used to force Internet companies to take down harmful material, and why plaintiffs have resorted to using civil procedure in the form of subpoenas to Internet companies that expose the poster as a way to stop the defamation. Part III explains the use of subpoenas in John Doe lawsuits and argues that, because constitutional considerations have shaped substantive defamation law, they should also influence the procedural law for issuing subpoenas in anonymous defamation cases.

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