Last week, renowned film and television actor James Woods brought a defamation claim against an anonymous Twitter user who tweets from the handle “Abe List,” alleging that Abe List falsely accused Woods of being a cocaine addict. The allegedly false statement, which Woods alleges was tweeted to and/or seen by potentially hundreds of thousands of Twitter and Internet users, reads” “cocaine addict James Woods still sniffing and spouting.”
As Hajir explained in this interview with the Metropolitan Corporate Counsel, people are becoming more and more adept at defaming others in 140 characters or less and cases involving “Twibel” are on the rise. And while the fundamentals of defamation law still apply in the post-Twitter and social media world, a unique challenge that Woods and other defamation plaintiffs may face in this new arena is locating who to sue in the first place. Woods’ complaint currently names “John Doe a/k/a ‘Abe List’” and other unnamed John Does as the defendants in the lawsuit, and presumably is now employing the usual investigatory methods to uncover the Abe List’s true identity. As explained a previous post, there are numerous ways that a plaintiff may be able to locate identifying information about a speaker, for example, through discovering a link between the speaker and a website address, email address, or username. In this case, one of Woods’ first courses of action may be to serve a third-party subpoena to Twitter, which may, in turn, lead to the discovery of identifying information for Abe List, such as email addresses, telephone numbers, and/or the Internet Protocol (IP) address(es) associated with Abe List’s Twitter activity. If an IP address corresponds to a residential Internet Service Provider (which an often be determined through a reverse lookup or WHOIS search), a follow up subpoena to the Internet Service Provider may reveal the defendant’s name and/or location.
It remains to be seen whether Woods will be successful in unmasking Abe List’s identity, or whether Abe List will voluntarily appear in the lawsuit. Even if Abe List proves to be difficult to identify, however, Woods may not be without remedy. One California federal court, in Combs v. Doe, 2010 WL 4065630 (N.D. Cal. Oct. 15, 2000), allowed a plaintiff in a cyber theft case to serve an anonymous defendant by publication and email after the plaintiff’s exhaustive investigative efforts (which included subpoenaing several Internet companies) was unsuccessful in yielding the defendant’s actual identity. The plaintiff in Combs ultimately was able to obtain a default judgment against the John Doe defendant. A default judgment – even against an anonymous defendant – can be valuable in Twibel cases where a third party has the power and ability to remove harmful content from the Internet. Although social media companies may hesitate to remove or suspend user-generated content from their services except in clearly delineated circumstances, many have stated that they will respond (and have responded) if provided with a court judgment. Stay tuned for further developments.