The right to publish anonymously is a freedom of speech generally protected by the First Amendment, although constitutional protection is not afforded to anonymous speech that is defamatory. Anonymous speech published on the Internet is afforded the same constitutional protection, but persons targeted by such speech may seek identification of the speaker from the website host or Internet service provider when the speech is allegedly defamatory. However, no national consensus has yet emerged on precisely how to balance the right of anonymous free speech with the need of a defamed person to obtain the identity of the speaker.
In Krinsky v. Doe 6, the court of appeal concluded that if a defendant has been notified that a plaintiff seeks his or her identity and the defendant seeks to quash a subpoena issued to the site host or service provider, the plaintiff must make a prima facie showing of the elements of libel in order to defeat the motion to quash. If the plaintiff succeeds in providing evidence that a libelous statement has been made, the court concluded that no further balancing of interests is necessary to overcome the defendant’s constitutional right to speak anonymously (Krinsky v. Doe 6 (2008) 159 Cal. App. 4th 1154, 1172).
The court in Krinsky noted that a requirement that the plaintiff attempt to notify the defendant when his or her identity is sought would not be unduly burdensome, and also that Internet service providers and message board hosts often provide notice to parties when their identity is sought. The court did not actually impose a notice requirement, however, because in the case before it, the defendant had already been notified and thus the issue was moot. (See Krinsky v. Doe 6 (2008) 159 Cal. App. 4th 1154, 1171).
So, if you seek the identity of an anonymous internet poster who you believe has defamed you, you must sue the anonymous defendant as a “DOE” defendant, (e. g., Defamed Plaintiff vs. DOES 1-10), then serve a subpoena on the ISP (the internet service provider(s) that are hosting the offensive posting such as EarthLink or Google, etc.) requesting the identity of the anonymous internet poster. Then, pursuant to the Krinsky case, if you present a prima facie case that the speech at issue is unprotected defamatory speech, the court will order the ISP to identify the anonymous internet poster so that you can proceed with your defamation lawsuit.