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How Can I Obtain the Real Name of an Author Who Has Defamed Me?
Suppose you just finished reading the long section about "So, you want to sue Ripoff Report?", and you realize that the law protects this website and, in most cases, does not allow you to sue the website's operators for the materials published here by users of the site. What do you do now? Of course, as we have said before, the law does NOT protect the original author, and thus you are free to sue that person if you wish. But how can you get the name of someone who posted a report anonymously?
Out of the millions of comments posted on Ripoff Report, once in a while we receive a request asking us to reveal the true identity of someone who posted a report. Sometimes these requests include a subpoena and sometimes they don't. Sometimes these requests come from an attorney and sometimes they are from an average citizen, business owner, etc.
Because most people are not familiar with the legal issues involved and because we regard the privacy rights of our users as extremely important, this section explains our policy on when and how the true identity of a Ripoff Report user may be obtained. This section also provides answers to the following questions:
- Can Ripoff Report users remain anonymous and protect their privacy?
- Will Ripoff Report ever disclose the real name of an author?
- How can lawyers obtain information about an author?
THE FIRST AMENDMENT RIGHT TO FREE SPEECH INCLUDES THE RIGHT TO REMAIN ANONYMOUS.
First of all, it is important to understand a fundamental point - the First Amendment right to free speech includes the right to remain anonymous. That's not just our view, it is a principle the United States Supreme Court has recognized over and over again; "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-42, 115 S.Ct. 1511, 1516, 131 L.Ed.2d 426, 436 (1995).
Why does this matter? Because people who ask us to voluntarily disclose the real name of an author need to appreciate this is similar to walking into a doctor's office and asking to see someone else's medical records. This information is private and can't just be handed over upon request. Rather, you have to follow a series of steps to be sure that the affected party is informed of the request so he/she can take steps to protect their privacy. We'll explain what those steps are later below.
THE RIGHT TO REMAIN ANONYMOUS IS NOT ABSOLUTE.
Of course, the right to remain anonymous is NOT absolute - you can lose your right to privacy if you abuse it. For example, if someone posts a death threat against the President, the First Amendment will offer no protection. Furthermore, the First Amendment does not protect statements which are false and defamatory.
YOU CAN'T OBTAIN AN AUTHOR'S NAME JUST BY CLAIMING THAT SOMETHING IN A REPORT IS FALSE OR INACCURATE
Although the First Amendment does not protect defamatory speech, this does not mean that you can contact the Ripoff Report and obtain an author's name just by claiming that something in a report is false or inaccurate. We are not in a position to determine which party is telling the truth, so we cannot and will not dissolve the First Amendment rights of our users based on a unilateral allegation that something in a report is false. These issues must be presented to the courts so that a judge can review the matter and decide what to do.
So, what does this mean? What do you have to do in order to get the real name of an author?
The Arizona Court of Appeals recently answered that question as follows:
We hold that to obtain a court order compelling discovery of an anonymous internet speaker's identity, the requesting party must show that: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request, (2) the requesting party's cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identity of the anonymous speaker, and (3) a balance of the parties' competing interests favors disclosure.
Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (Ariz.App. 2007) (if you are interested, you can read the full Mobilisa case here: http://www.scribd.com/doc/76263546/Mobilisa-v-Doe-217-Ariz-103-170-P-3d-712-App-2007
Because Ripoff Report is located in Arizona and all of our business records are kept in Arizona, we require that any request for the identity of an author must comply with the standards of Mobilisa. What this means is that if you want to obtain the identity of an author, you must do each of the following things:
1.) Obtain a subpoena from an Arizona court (preferably the Maricopa County Superior Court in Phoenix) which describes the information you are requesting. Fancy legalese or magic words are NOT required and we would appreciate it if you would keep your request as SHORT and CLEAR as possible. In general, unless you need something more, your subpoena can simply say: "Please produce all author information for the author of Report #123456." We generally track individual postings by Report # which you can find at the top of each report page, so please be sure to include the report # with any subpoena you send. Also, please be sure to include YOUR email address with your subpoena. Failure to include a valid email address may significantly delay the processing of your subpoena.
NOTE - personal service of subpoenas is NOT required - we are happy to accept service via email/fax. You can send a copy to us at: firstname.lastname@example.org or you can fax a copy to us at: (480) 248-3196. However in order to avoid any confusion, service of a subpoena by fax/email is NOT complete unless and until you receive an email response from Ripoff Report confirming that we have received your subpoena. If you do not receive a confirmation email, then you should re-send your subpoena or, alternatively, you are welcome to serve our statutory agent in Arizona: Maria Speth, c/o Jaburg & Wilk, P.C., 3200 N. Central Avenue, Suite 2000, Phoenix, AZ 85012.
2.) As soon as you have sent us your subpoena, you MUST post a notice as a rebuttal to each report for which you are seeking the author's information. We will not do this for you, so please don't ask. This notice must explain that you have initiated a court proceeding in an effort to learn the author's identity and it should provide a case number and name/address of the court so that the author can appear and defend the case if necessary. Although the exact form and contents of the notice are up to you, you may wish to review some notices used in the past (scroll down and look for the legal notices at or near the bottom):
3.) After allowing a reasonable amount of time for the author to appear (which may or may not occur), Ripoff Report will review your subpoena and determine whether or not we believe the statements in the report are actionable. In other words, if the statements are very clearly limited to nothing more than the author's opinions (which are generally entitled to First Amendment protection), then it is likely that Ripoff Report will object to your subpoena. On the other hand, if it very clear that the report contains statements which might be defamatory (assuming they are false), then Ripoff Report may choose NOT to object to your subpoena in which case we will provide you with any records we have unless the author brings his/her own objection or Motion to Quash.
4.) If Ripoff Report or the author does object to your subpoena, you must bring a motion in the issuing court asking the court to determine that you have complied with the standards set forth in Mobilisa. Depending on the nature of the statements, the position of the author (if any) and the arguments in your motion, Ripoff Report may or may not oppose your motion. If the court reviews your motion and finds that you have satisfied Mobilisa's requirements, then we will provide you with the requested information.
If this seems like a hassle, please understand that we don't make the law and we are not in a position to make a judgment as to whether or not you are entitled to overcome the First Amendment rights of an author. Those decisions must be made by the courts, and if you have a valid claim, jumping through these hoops should not prove very difficult or costly.
If you have any specific subpoena-related questions which are not already covered above, please feel free to send any questions to email@example.com.
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