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Can an Internet defamation lawsuit be filed against a person based on suspicion if the real author of the statement is unknown?

San Jose, CA |

If a defamatory statement is posted about an individual on Internet and the real author of the statement is unknown, can a lawsuit be brought against individuals based on suspicion? And if yes, then what would be the measures to defend oneself? Can the defendant take a 5th to prevent being self incriminated?

Attorney Answers 6


  1. Yes, but such lawsuit would be extremely difficult for a plaintiff to win without admissible evidence demonstrating that the named defendant(s) actually made the defamatory statement. I presume you are contemplating making a defamatory statement on the Internet against someone?

    Defamation consists of both libel and slander. California Civil Code 45 provides that: “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.”

    As to slander, California Civil Code 46 provides that: “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

    1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
    2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
    3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
    4. Imputes to him impotence or a want of chastity; or
    5. Which, by natural consequence, causes actual damage.”

    Any lawsuit requires plaintiff to have evidence to prove each of the elements for each cause of action. For any defamation claim to succeed, the plaintiff must both allege and prove damages. Damages are usually the most difficult obstacle for anyone suing for defamation.

    Just calling someone a liar, dishonest or unethical probably wouldn't constitute actionable defamation. Moreover, opinions are not actionable defamation. (So, you might want to couch your contemplated statement as an "opinion".) Furthermore, truth is an absolute defense to defamation.

    Defamation cases are civil lawsuits. Pleading the 5th amendment applies to criminal, not civil proceedings.

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


  2. Yes, you can file a lawsuit, but it would be nearly impossible to prove it in court if the author is unknown. The defendant would be able to take the 5th in this instance.

    Sincerely,
    Ripal Patel, Esq.
    San Jose Attorney

    Your particular situation may be different. This answer is intended for information purposes only. No Attorney-Client relationship has been established.


  3. Yes but hard to win. Maybe you could find the real culprit using discovery.


  4. You can file your lawsuit agains "John Doe aka screen name". You can then ask the court to subpoena the screen name information.

    If you have made a good faith showing in your complaint that a reasonable law suit exists, the court should issue your subpoena.

    Finally, defamation law suits are notoriously hard to win. Is this really how you want to spend your time?

    This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.


  5. This is a common question regarding the internet, that is, someone has said something untrue and damaging about you, but you are not sure who it is. In such situations you can file against "John Doe and Jane Doe" an unknown person and then use the filed lawsuit to subpoena the information. However, some clients do not want to start a law suit without knowing who they are suing. Different states permit disclosure before an action is commenced. For example, in New York, CPLR 3102 (c) regards discovery procedure before an action is commenced. In this procedure you file a petition for the court to issue a subpoena and support it with particular information showing a good cause of action. This is where a lawyer is needed - to make sure that the filing and the details are done right. Assuming the Petition is granted, the subpoena issues and the culprit is found, then you would file the lawsuit and have a probability of success on the merits (if the defamation was an untrue statement and not merely opinion)l

    The comments above are for informational purposes only and not intended as legal advice to be relied upon in any way This is so particularly because different factors and details unknown to the attorney at this time could materially change these comments.

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