Mudd Law Offices has experience representing individuals who have been impersonated on the Internet including having fake or fraudulent Facebook pages and accounts created about them.
In Part I of this series, we discussed the need to preserve information and content as it appears online; speak to an attorney; and have a letter sent to the host of the content (e.g. Facebook for fake Facebook accounts, Twitter for fake Twitter accounts, etc.). Now, we turn to remedies beyond seeking removal of the content from the host.
Litigation
Given that the account or profile impersonates another individual, the actual individual who posted the content will likely be unknown. In this situation, there exist very limited means of determining the identity of the individual who created and posted the content. Sometimes, the fake account may contain information that can serve as clues to determining the identity of the individual who posted the content. Should these clues identify an individual likely to be responsible or should you know who is actually responsible, you may wish to have your attorney send the individual a demand letter. However, the decision on whether to do so or not depends on a number of variables an experienced attorney and lawyer will be able to discuss with you.
Where you do not know who posted the content, you need to decide whether you need to determine who did so. Should it be a one-off situation (where it occurs but once) and the content is removed, you may not need to pursue an additional remedy unless and until it happens again. However, the risk exists that it could happen again. Consequently, many of our clients decide they need to learn who posted the content such that it will not happen again. Apart from sleuthing to determine who did so or perhaps securing cooperation from local law enforcement (which often is difficult under these circumstances), the only real option will be to file litigation.
Where litigation is filed and the identity of the defendant is unknown, the litigation is often referred to as John Doe Litigation. This involves drafting and filing a complaint. Then, your attorney will need to secure the ability to pursue discovery outside of the normal timing provided by existing rules. Should the Court allow discovery, your attorney will need to issue varying layers of subpoenas seeking information that will identify the defendant. This can be costly.
Upon request, Mudd Law can offer to complete this portion of the representation on a flat fee basis. Otherwise, our firm bills on hourly rates.
When entities receive subpoenas in this context, they often provide notice to the account holder at issue and provide the account holder with the opportunity to oppose the subpoena by filing a motion to quash. Ideally, in this situation and from the perspective of the plaintiff, a motion to quash will not be filed, and the host will produce the requested information. This information may then lead to more subpoenas. However, at times, the account holder will file a motion to quash. This would traditionally (and properly) fall outside the scope of a flat fee discussed above (you do not want to be paying an attorney to argue a motion that may not occur). Should the motion to quash be granted in its entirety, the host will not need to produce the information requested. Should it be denied, the host will likely produce the information.
Assuming you obtain the identity of the individual, you then need to determine whether to send a demand letter or amend the complaint to name the defendant(s) individually. This decision should be made after careful consideration of many factors your attorney should discuss with you.
Criminal Options
Sometimes, where criminal violations have occurred, you may be able to approach law enforcement to investigate fake online accounts created in your name. However, law enforcement may often be occupied with crimes involving bodily harm or other immediate concerns. While your reputation is understandably important to you, sometimes resources will dictate which matters law enforcement may be able to address. At times, even if you do obtain cooperation, there may be delay. Given some ISPs destroy information after six months ( Comcast for example ), you should seriously discuss whether to rely solely on criminal options where timing will be a concern.
Additionally, should you pursue criminal options, you may limit the involvement of your attorney. In most jurisdictions, attorneys cannot use the threat of criminal proceedings to leverage a settlement.