Attornet Gregory Wheeler writes www.leominsterchamp.com –

Without question, the internet provides the most convenient forum to express your ideas anonymously under the protection of the First Amendment.

Indeed, the U.S. Supreme Court found in the 1995 case McIntyre v. Ohio Elections Commission, that an author’s decision to remain anonymous “is an aspect of the freedom of speech protected by the First Amendment.”

However, the U.S. Supreme Court also stated in the 2002 case Ashcroft v. Free Speech Coalition, when “vigorous criticism descends into defamation . . . constitutional protection is no longer available. It is well understood that the right of free speech is not absolute at all times and under all circumstances.”

Under the cover of the internet’s anonymity, web users have become relentless in spreading hateful, derogatory, and harassing messages about other individuals and corporate entities.

In the context of pre-teens and teenagers, this hurtful activity, known as “cyberbullying,” has had the most severe and dire results – death.

In 2003, an eighth grader from Vermont committed suicide after being bullied online. In Massachusetts, cyberbullying was attributed to the deaths of an eleven-yearold boy in April 2009, and a fifteen-year-old girl in January 2010. In March 2010, a seventeen-year-old girl from Long Island, New York took her own life after what may have been cyberbullying. In her case, the messages remarkably continued even following her death.

This past May, Governor Patrick signed into law an anti-bullying bill in response to the cyberbullying epidemic. The new law includes requirements for schools to take action against this perpetual bullying and it also includes an important role for the Attorney General’s Office. I urge parents to contact your child’s school, the local police department, and the AG’s Office if you feel your child being victimized by cyberbullying.

In cyberbullying cases, however, the student victims often know who the culprits are. What if you, as an individual or corporation, are unaware of the who? What can you do if the messages have damaged you and all you know about the individual(s) responsible for the false statements is their unintelligible screen name? What is your recourse?

First, file abuse reports to the website or moderator that the statements are posted to. This is usually the quickest method to have the content removed and/or restrict the abuser’s capabilities.

Second, in addition to the criminal options available, a civil defamation lawsuit may be the answer. A defamation lawsuit may be the vehicle for those who wish to uncover the identity of the anonymous poster(s), put an end to the damaging posts, and potentially recover financial compensation.

These cases are typically commenced against “John Doe” and his/her identity is later found through a series of subpoenas served on Internet Service Providers (ISPs) and social websites that the unknown defendants subscribe to post their diatribe.

However, the road to meeting John Doe is often long, bumpy, and unpredictable.

All ISPs have privacy policies to follow before any subscriber information is released (by the way, the ISPs and providers are generally immune from liability under the Communications Decency Act).

These policies include notifying the unknown defendant that someone out there is looking for them and informing them that they have a period of time to take appropriate action before identifying information is released. In addition, the ISP or provider itself may not be willing to release the information and it may ask the Court to “quash,” or void, the subpoena.

However, before you can even issue a subpoena to an ISP, you may need to obtain a Court Order to do so. Although Massachusetts courts have yet to implement any test or criteria regarding the issuance of such Orders, the plaintiff’s right to protect his reputation and seek redress for his injuries must be weighed against the defendant’s First Amendment anonymous free speech rights. An unfavorable ruling here will stop the case in its tracks at the earliest possible stages.

But, these hurdles can be overcome and “John Doe” can be found. Once this is accomplished, the lawsuit can be amended to name these individual(s) and injunctive and monetary relief can be pursued. Whatever the outcome of the case, you have changed the rules of the game and the now known defendant(s) must defend their hateful and derogatory statements if the case against them moves forward.