How a John Doe Lawsuit Can Help You Unmask the Source of Fake Reviews, Defamation, and Harassment | Kohrman Jackson & Krantz LLP

The internet holds some of the largest threats an individual or business can face in 2024. Online threats can become even more challenging to address when the attacker acts anonymously. Businesses and individuals commonly face the following types of anonymous online threats:

While the anonymity provided by online platforms can make it more difficult to hold an anonymous perpetrator accountable, anonymous online actors can be unmasked through a specific type of lawsuit called the John Doe lawsuit.

What is a John Doe Lawsuit?

A John Doe lawsuit, also known as “suing an unknown defendant” is a lawsuit that allows the person or company targeted by an anonymous online actor to utilize the legal system’s discovery process to unmask the identity of an unknown person. The unmasking process involves a combination of issuing subpoenas for data associated with the anonymous profile and conducting cyber investigation to identify the source of an attack. Once the anonymous actor is identified, they can then be named in the lawsuit and held legally accountable for their actions through traditional litigation.

How Law Firms Unmask Anonymous Actors with the John Doe Lawsuit

John Doe unmasking lawsuits are extremely complex and necessitate a thorough understanding of social media and tech platforms, IP addresses, and electronic evidence. Law firms carefully evaluate the facts behind an attack in advance of filing a John Doe lawsuit to set clients up for success in the unmasking process. Typically, attorneys filing John Doe lawsuits guide their clients through the following steps:

1.)    Document Evidence and Damages

Before filing a John Doe lawsuit, it is crucial that the targeted person or business collect and preserve all relevant evidence.  First, the more data trails an attorney has to pursue, the higher your chances of success in identifying your attacker. Additionally, anonymous online actors often alter or delete publications subject to litigation, which in turn can hinder the progress of the lawsuit and subsequently hinder your ability to identify your attacker.  Thus, preserving data in anticipation of a John Doe lawsuit is extremely important.

Attorneys focusing on internet defamation and content removal commonly file John Doe lawsuits. These practices typically have special software to preserve electronic evidence, called data preservation software.  Data preservation software preserves evidence, including entire websites and social media profiles, as they were at a particular date and time. This evidence can be invaluable later if the authenticity of the content is in question, or if ancillary information is needed later in the litigation that might not have been initially contemplated. Preserved data should include screenshots and URLS of the content at issue and the relevant profiles of the publisher.

Individuals and businesses targeted by negative content, including fake reviews, should also document damages. Damages may include the loss of a job, loss of revenue, contract cancellations, and even increased costs from services like therapy, online reputation management and suppression, or advertising. Documenting damages will help you streamline your case and advocate for yourself and your business in court.

2.)    Determine Legal Claims and Ascertain Jurisdiction

The next step in a John Doe lawsuit involves determining the appropriate location to file your suit as well as the appropriate legal claims. In John Doe cases, the appropriate jurisdiction can vary, as the location of an anonymous Defendant is unknown. Typically, Plaintiffs in John Doe actions consider filing suit in the jurisdiction where they are located, the location where they have been damaged, or the location where the data is located. There are many strategic considerations to weigh when determining jurisdiction, as laws and claims governing online content vary significantly from state to state.  Selecting appropriate legal claims is also critical. In the context of fake reviews, claims can range from defamation to privacy torts. Your legal claims will depend on the facts of your case and the appropriate jurisdiction. Keep in mind that when you identify your attacker, you might have additional claims.

3.)    Meet Pre-Suit Requirements

Pre-suit requirements, like legal claims, vary greatly from state to state.  One such pre-suit requirement is the retraction demand in defamation cases. Many states mandate that individuals who intend to file defamation suits request retraction, correction, or clarification from a publisher before pursuing litigation. For example, while Plaintiffs in Ohio have no obligation to demand retraction before suing for defamation, Plaintiffs in Florida must make a written retraction demand to the potential defendant five days before filing a lawsuit. If this step is missed, it may jeopardize your action.

The purpose of retraction statutes is to provide a defamation defendant with the chance to mitigate damages.  Although complying with a retraction demand does not negate a person’s legal claims, it can affect the damages available. Not making a required retraction demand can lead to severe consequences, potentially including complete dismissal of a lawsuit. Therefore, it is crucial to be mindful of nuances involved with the John Doe lawsuit, including pre-suit retraction requirements.

Frequently, pre-suit requirements can pose challenges for a plaintiff when the defendant’s identity is unknown. It is critical to make reasonable efforts to meet pre-suit requirements even before the defendant is identified. This often requires creativity, which can include publishing a retraction as a comment in response to a fake review.

4.)    File the complaint or petition

The next step in unmasking an anonymous actor is to file the John Doe lawsuit. A Plaintiff initiating this type of lawsuit files the lawsuit against the anonymous poster with the placeholder “John Doe.”  The theory is, after the anonymous online actor is identified, Plaintiff will amend the placeholder to include the Defendant’s true name.

5.)    Issue subpoenas to obtain user data

After filing the complaint, a plaintiff can use the discovery process to identity the Defendant. In some jurisdictions, a plaintiff must first file a motion to authorize discovery. This requires demonstrating a prima facie case of the elements of legal claims. If plaintiffs meet this burden, they can proceed with issuing subpoenas.  To unmask an anonymous poster’s identity with a subpoena, plaintiffs must be able to sift through the available datapoints to determine which data trails to follow. Additionally, plaintiffs must be prepared to provide a subpoena that is binding on the internet platform, which may or may not be located in the same jurisdiction where the action was initiated. The process in nuanced and often requires the expertise of an attorney who is experienced in this type of lawsuit.

6.)    Meet objections from social media platforms, e-commerce companies, or internet service providers

Social media platforms, e-commerce companies, and internet service providers are typically extremely protective of the private data of their users, including the identities of anonymous users. While it depends on the facts of each case and the data sought, a tech platform has the opportunity to object to the subpoena. If this happens, plaintiffs must consider taking additional steps to secure the data related to the identity of the user, including attending “meet and confers” with the tech platform and possibly even seeking an order from a judge compelling the tech platform to provide data.

7.)    Analyze the data responsive to the subpoena and identify the John Doe

After subpoenas are issued, the information received must be analyzed to identify the anonymous internet user. For more information on how law firms identify anonymous internet users, check out our article Fighting Defamation: How Law Firms Identify Anonymous Internet Users.

While identifying the John Doe might be easy when the data responsive to the subpoena is simply name or phone number, it can be more complicated when that data is an IP addresses, email address, or geolocation.  Depending on the information received, you may be able to identify the Defendant after one round of subpoenas. If not, you may have to send out additional subpoenas.

Unmasking a John Doe with an IP address is more complicated. All IP addresses are associated with Internet Service Providers (ISPs). ISPs are governed by special privacy laws that protect users from having their identities disclosed. Specifically, Section 551 of the Cable Communications Policy Act prohibits ISPs from disclosing customer data without court authorization. Therefore, before issuing a subpoena to an ISP, you must first obtain a court order. After securing this court order, you can attach it to your subpoena and serve it to the ISP. The ISP will then be compelled to provide the necessary data, which should help identify the individual responsible or at least narrow down the possible actors. However, further investigative steps may still be required to fully establish the identity of the defendant.

8.)     Identify and Name the Defendant

Once the defendant is identified, the plaintiff can send a demand letter to the defendant to demand settlement or amend the complaint to replace the John Doe placeholder with the name the defendant.  If the defendant is a competitor, you will likely have additional legal claims to add to the complaint. For more information about a John Doe lawsuit where a competitor was  unmasked, check out this press release detailing a John Doe lawsuit filed by Ali Arko at Kohrman Jackson and Krantz: US Cybersecurity Firm Redbot Security Unmasks Malicious Insider Behind Internet Attacks.

Why Quick Action is Crucial in John Doe Lawsuits

Data Retention Policies: Social media platforms, e-commerce companies, and internet service providers all have different data retention policies which govern the timing of data storage.  For example, in the case of an Apple Airtag, the data retention period is only 25 days. Other platforms may retain data indefinitely. Thus, it is best to act fast so as to not lose the data that will help you identify your attacker.

Statute of Limitations: All legal claims have certain “statute of limitations” which sets a deadline for a plaintiff to file a lawsuit for a particular action. While this prevents cases from being brought long after the cause of action occurred, it complicates litigation in the case of an unknown defendant. Every state has different statutes of limitations for legal claims, with multiple factors potentially affecting the timing. A John Doe Defendant must be named before the end of the deadline or a plaintiff’s lawsuit will face dismissal. Therefore, acting quickly will provide you with more time to identify your anonymous attacker.

Contact an Internet Defamation and Content Removal Attorney

Online perpetrators hiding behind internet anonymity can be identified through the John Doe lawsuits. These lawsuits are complex and require a specific understanding of tech platforms and IP addresses, as well as the specific laws of your state. If you or your business is facing an online attack, an internet defamation and content removal attorney can help you thoroughly evaluate your options.

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