John Doe, Defamation and Cyberspace
What are my options if an anonymous web-surfer defames me in virtual cyberspace? This probably happens more often than not. When I sometimes look at the talkbacks after reading an on-line article, I basically see one potential defamation law suit after another. Or what about if someone were to open a bogus facebook account, with a fake name and identity, befriend my friends, and then defame me? What can I do? Can I file a suit against this anonymous "John Doe"? Can I demand that the internet service provider supply with the true identity of the anonymous individual, the "John Doe"?
I should mention, that in Israel, as opposed to the United States, if a victim successfully proves defamation, section 7a of the Anti-Defamation Law (1965) allows the victim to receive statutory damages from the defamer in the amount of NIS 50,000, even without having to prove real damages. So litigating defamation actions don't include the extra obstacle of needing to prove damages, which is usually difficult, especially in defamation cases.
Back to the John Doe topic. U.S. practice allows, in principle, law suits against unknown defendants. This is interesting because it highlights some of the differences between the Israeli legal system and the American legal system. If this anonymous defamation took place on U.S. soil, I could sue the anonymous defamer even before knowing who that defamer really is. After the lawsuit is filed, I could request the court to subpoena the internet service provider to produce documents relating to the defamer. American courts have recognized these types of law suits, a/k/a John Doe suits, which allow a victim (not necessarily a victim of defamation) to sue an individual not yet known but has the potential to be discovered in the course of the litigation. A U.S. court would then allow, under certain circumstances, for the victim to receive information regarding the identity of the anonymous defamer from a third, unrelated party, such as the internet service provider. For an example, you can read this decision in Highfields Capital Management v. Doe, 385 F. Supp. 2d 969 (N.D.Cal.2005).
Israel, on the other, is a different story. In 2007 the Israeli Supreme Court issued a 100 page decision regarding this exact issue. Mor v. Barak A.T.C. Ltd., Civil Appeal, 4447/07. Two out of the three justices in the panel set out the still standing legal precedent that under Israeli law the courts do not have the authority to issue subpoena's towards third parties to get information on anonymous defamers. Justice Rivlin, writing for the majority, rejected the notion that under current Israeli civil procedure, a victim can "create" a law suit by suing an unknown individual, hoping to eventually identify him or her during the course of the law suit. Also, under Israeli civil procedure, a victim of defamation cannot file a law suit against a service provider in an attempt to gain information, if that service provider is not at fault.
In Mor v. Barak, the Court highlighted the difference between the American system and the Israeli one, especially in the area of discovery. The very idea that a plaintiff can demand information relevant to his lawsuit from an unrelated third party is almost unheard of in Israel, whereas, in the U.S., such requests by plaintiffs are respected by the courts routinely. This seemingly "technical" and procedural distinction between these two great legal systems makes all the difference for the victim of anonymous defamation. The limited nature of Israeli discovery, in contrast to the U.S., is what prevented the Supreme Court from allowing a third party, such as an ISP, to disclose the identity of an anonymous defamer, absent authorizing legislation.
The Mor decision was applied recently in a lower court order denying a plaintiff's request to receive information regarding the identity of anonymous defamer from an internet service provider. However, the court did hint to the fact that under certain circumstances a court could issue such an order, even under the Mor decision. Navon et. al. v. Walla!, Ltd., Civil Action no. 31435-01-17 (May 4, 2017).