As the Internet continues to change the way we communicate, courts have struggled to determine the appropriate application of due process to those accused of defaming others online. Clearly, defamation claims involving comments made by an anonymous Internet poster are unique. Often the speaker is anonymous or his contact information is otherwise unavailable. Furthermore, because of the speed and widespread use of the Internet, the author may often reside in a different state or country than the reader or then the defamation victim. For these reasons, serving a summons and complaint, necessary to commence the lawsuit on such an individual can be especially challenging.

For instance, when a defendant is sued via a “John Doe” complaint, the plaintiff will generally have to demonstrate the efforts that he undertook to serve the defendant. For example, the plaintiff could show that he gave notice of the lawsuit by posting a message on the same website where the allegedly defamatory statements were made by the defendant. While this is usually not sufficient service in and of itself, this technique can be added to other forms of notice in a manner that some Courts might determine was sufficient service.

Typically, where an allegedly defamatory comment is made online, the only identifier that can be used to link the defamer to the comment is his email and I.P. address. In such a scenario, a plaintiff may try to serve the legal documents via email. However, where comments are made in online forums and message boards, the email address of the speaker may also be unknown. In such instances, a litigant will often sue the unknown individual using a “John Doe” complaint, or a complaint which names the defendant under the fictitious name “John Doe.”

If the plaintiff can demonstrate that he undertook sufficient efforts to serve the defendant, courts will usually permit him to bring an inquest to find out the identity of the anonymous poster. Once the defendant’s identity is discovered, the plaintiff may be required to amend the complaint to reflect the actual name of the party. He may also have to notify that party of the impending lawsuit. Some plaintiffs have gotten creative lately. For example, one plaintiff posted a message on an internet message board. That message contained a copy of the summons and notice asking the defendants to contact the attorney for the plaintiff in order to deliver a copy of the summons and complaint.

As the Internet grows and scope and complexity, both Courts and Legislatures will need to address in more detail the important issue of service of process on line.


© 2008 Nissenbaum Law Group, LLC

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