Litigation Defenders

Usernames. Filters. Face editing applications. “Deepfakes.” “Finstas” (ask someone born in the ‘90s or ‘00s about that last one). Not only can anyone theoretically post anything, but they can do so under multiple layers of anonymity.

Where the internet holds powerful sway over “the court of public opinion,” harmful and inaccurate online statements can severely harm the interests, prospects and pocketbooks of clients vulnerable to public scrutiny – from large retailers and other business owners to public officials and other professionals. It’s important not to undercut the impact of words and the fragility of reputation.

The good news? A number of claims are available to entities and individuals with damages arising out of baseless negative online reviews, extortionate threats and false statements. Among the most prominent of those avenues is defamation.

But what if the issue is not what exactly was defamatory, but whodunnit?

 Think of your suspects: the jilted, the jealous or the furious. A former employee? A resentful ex-coworker? A disgruntled customer? A conniving business competitor? An ex-lover? Who had idle hands and a keyboard within reach? Regardless, the courtroom is likely not the right place for a wild goose chase.

The Michigan Court of Appeals has adopted the U.S. Supreme Court’s view that “an author’s decision to remain anonymous” is protected under the First Amendment. Nevertheless, anonymous expression on the internet falls outside the First Amendment’s protection when it is defamatory.

Yet, the process of pursuing an anonymous online critic is something that continues to vex Michigan courts and is ripe for further development. Before you spend precious time, money and effort chasing down anonymous, defamatory comments online, you would do well to consider your chances for success to end the attacks, to secure a retraction and/or to recover financial damages

Here are four key takeaways to consider before taking up an action against an anonymous opponent.

1. If you’re simply using a defamation suit to get information and get even, you’re likely to be unsuccessful in unmasking your opponent.

When words arise out of bad blood, its unsurprising that an online critic would be keeping an eye out for their target’s reaction and then the lawsuit. The limited landscape of Michigan case law on this topic indicates that – even when a plaintiff’s complaint only names a “John Doe,” it is not uncommon for an anonymous defendant to get wind and file an appearance in the early stages of a proceeding.

However, even then, an anonymous defendant can rely on two things to effectively keep his or her identity hidden throughout the suit: a protective order pursuant to MCR 2.302(C) and summary disposition pursuant to MCR 2.116(C)(8), which tests the legal sufficiency of the plaintiff’s complaint.

In Thomas M. Cooley L. Sch. v. Doe 1, 300 Mich. App. 245(2013), defendant Doe 1 created a blog via Weebly.com (Weebly) to publicly bash the plaintiff law school. Not knowing Doe 1’s identity, the plaintiff named several “John Doe” defendants in its complaint. Once Doe 1 appeared with counsel, the plaintiff petitioned a California court to issue a subpoena to Weebly for Doe 1’s user information. The ensuing litigation resulted in a blueprint for how Michigan courts balance an anonymous critic’s First Amendment interests with discovery.

Cooley reasoned that a two-prong protection scheme can sufficiently protect the interests of anonymous defendants. First, a protective order can flexibly prevent disclosure of an anonymous defendant’s identity. Second, a motion under MCR 2.116(C)(8) can serve to dismiss a deficient claim before discovery closes.

The Cooley court acknowledged that trial courts can modify the scope of a protective order to ensure that (1) a plaintiff may not discover the anonymous defendant’s identity, or (2) as a condition of discovering the defendant’s identity, a plaintiff may not disclose it until after the legal sufficiency of the complaint is tested.

Even more recently, this approach has effectively halted efforts to use discovery to unmask anonymous defendants. In Gursten v. Doe 1, No. 352225, 2021 WL 1056081 (Mich. Ct. App. Mar. 18, 2021), the plaintiffs – an attorney and his law firm – received a wordless one-star Google review from a pseudonymous poster. Discovery revealed that defendant Doe 1 was a disbarred former attorney, and this led plaintiffs to believe Doe 2 was another attorney-business competitor. However, once the court concluded the complained of content could not survive summary disposition, the plaintiff’s hopes of truly confirming Doe 2’s identity were effectively dashed.

2. Courts are steadfast that Michigan’s legal system is equipped to handle a contentious defamation battle - but the most “extreme” case has not happened.

By-and-large, the Cooley decision remains a stop-gap measure. While relying on the sufficiency of Michigan’s state rules, the Cooley court contemplated the “extreme case.”.

The abbreviated version is as follows: A plaintiff company sues a critical, anonymous Internet blogger. The plaintiff suspects the defendant of being compensated by a business competitor and sues merely to unveil his or her identity. To learn the defendant’s real name, Michigan rules allow the plaintiff to pursue discovery against the internet provider during the 91-day service-of-summons period. However, a plaintiff that does not know the defendant’s identity cannot serve the defendant with process. In this scenario, the defendant would only be able to learn of the suit once “outed” via discovery.

The Cooley court acknowledged that other jurisdictions provide some protections to anonymous defendants that Michigan does not. For instance, Dendrite Int’l, Inc. v. Doe No. 3, 342 N.J. Super. 134 (App. Div. 2001) adopted a four-part approach to protect a defendant’s interest in anonymous commercial speech, which included a requirement to try to notify the defendant of efforts to reveal his or her identity and to withhold the action to give the defendant reasonable opportunity to file and serve opposition. Additionally, Doe v. Cahill, 884 A.2d 451 (Del. 2005) retained the Dendrite notification provision to protect the identity of an anonymous political speaker on the internet).

Regardless, the Cooley court declined to adopt such standards where this extreme case had not yet arisen. For instance, in Cooley, Doe 1 was aware of the lawsuit and the plaintiff’s efforts to ascertain his real name “relatively early on.” Additionally, Doe 1 successfully used Michigan’s mechanisms to avoid the public disclosure of his name. As such, the Cooley court expressed its belief that Michigan’s legal system can respond “either retroactively through litigation or prospectively through Supreme Court rulemaking, if and when the extreme case arises.”

3. “Reasonable efforts” to notify anonymous defendants of a defamation suit are only required when the defendants remain unaware or inactive.

A year after Cooley, without adopting Dendrite/Cahill per se, the Michigan Court of Appeals in Ghanam v. Does, 303 Mich. App. 522 (2014) introduced an updated protection scheme tailored to situations where the anonymous defendant(s) had no knowledge of the pending defamation matter and remained uninvolved in the proceedings.

In Ghanam, the plaintiff deputy superintendent of a city public works department filed a single-count defamation complaint against several anonymous defendants who posted statements about him on an internet message board. Where there was zero evidence of any awareness or participation on the part of the defendants, the Ghanam court expressed concern that no one was able to move for summary disposition under MCR 2.116(C)(8). Further, any protection by way of a protective order would depend on the nonparty internet service provider asserting the anonymous defendants’ First Amendment rights.

Thus, the Ghanam court went beyond Cooley and imposed two additional requirements “to balance the plaintiff’s right to pursue a meritorious defamation claim against an anonymous critic’s First Amendment rights.”

Under the Ghanam protection scheme, when a plaintiff seeks to reveal the identity of an anonymous defendant who might be unaware of the suit, the plaintiff must first undertake “reasonable efforts to notify the defendant of the lawsuit.” Ghanam defined reasonable efforts to mean “that at a minimum, if possible, the plaintiff must post a message on the same message board or other forum where the alleged defamatory message appeared, notifying the anonymous defendant of the legal proceedings.” Second, regardless of whether there is a pending motion for summary disposition, the trial court must analyze whether the plaintiff has stated a claim on which relief can be granted under MCR 2.116(C)(8).

4. Changes are likely coming.

Notably, the Ghanam court explained that it would have preferred to simply adopt the Dendrite/Cahill approach in its entirety, but it remained bound by its decision in Cooley that protective orders and MCR 2.116(C)(8) were sufficient. Thus, Ghanam left further modifications in the hands of the Legislature or Supreme Court.

However, in the years following Ghanam, Michigan courts have wrestled with how far to stretch the applicability of either Cooley or Ghanam to increasingly unique scenarios.

Notably, Sarkar v. Doe, 318 Mich. App. 156 (2016) held that Ghanam’s framework appropriately applied when a plaintiff professor sought the identities of anonymous user(s) behind 30 allegedly defamatory online comments and only one anonymous defendant became aware and filed an appearance in the matter.

As internet platforms continue to evolve, the writing may be on the wall for Michigan’s nearly decade old two-prong approach to protecting the identities of anonymous defendants. However, as courts assess this issue case-by-case while waiting on more drastic measures from the Michigan Legislature or the state’s Supreme Court, only time will tell if and when an unprecedented set of facts will trigger the creation new of approaches. 

In the meantime: whether a plaintiff is likely to find out the true identity of an anonymous defendant ultimately depends on its ability to actually prove defamation. Thus, the first important step for any potential defamation client is to find counsel who can effectively assess and investigate that threshold question.