Filing Pseudonymously: Overview
Contents
-
Why bring a lawsuit using a pseudonym?
Since most court records are public, suing under your real name risks the danger of bringing more attention to your situation. Thus, most victims of online image or information posting are forced to choose between seeking justice through a lawsuit and risking further harm or avoiding a lawsuit in order to stay out of the limelight. Pseudonymous litigation offers the potential for both justice and privacy by allowing victims to proceed with a lawsuit, yet making it difficult for members of the public to link the victims’ identity to the offending content online.
The public interest is well served by providing an avenue for pseudonymous litigation in these sorts of cases. Given the seriousness and the reprehensibility of the harm at issue, the public has an interest in punishing and deterring such behavior by providing victims of invasion of privacy with a clear path to justice through our judicial system.
↑ Back to top -
How to Proceed with a Pseudonym
This page provides an outline of issues to consider as you determine whether you, or a client you are representing, should proceed with a pseudonym. The ideas presented here are gathered from a review of court filings in cases where plaintiffs have proceeded, or attempted to proceed, with a pseudonym.
↑ Back to top -
Three Paths To Proceed With A Pseudonym
-
File a motion to proceed pseudonymously
Some plaintiffs file separate motions to request a protective order from the court permitting them to proceed with a pseudonym.
Pros: If the order is granted, then the defendant is unable to submit documents containing the plaintiff’s full name without violating a court order.
Cons: The court may deny the request at which point the plaintiff is left with the option of proceeding with her/his full name or dropping the case in order to avoid public attention.
-
Request to proceed pseudonymously in the complaint
Some plaintiffs request permission to proceed with a pseudonym in the complaint.1
Pros: This is a simple approach.
Cons: With this approach there is no court order requiring that all court documents protect the plaintiff’s true identity, so the defendant might decide to respond in pleadings or in the press with the plaintiff’s full name. In a case where a defendant has made an effort to publicly shame the plaintiff, this risk may be more pronounced.
-
Simply file a complaint with a pseudonym
Some plaintiffs simply file a complaint under a pseudonym without following any formal process.
Pros: This may be the simplest, least time-intensive approach.
Cons: This approach may be a violation of the court’s local rules. For example, the local rules for proceeding with a pseudonym for Multnomah County Circuit Court in Oregon state that a party is only allowed to proceed with a fictitious name with a court order.2 Also in this scenario, there is no court order requiring that all court documents protect the plaintiff’s true identity, so other court documents may reveal the plaintiff’s identity.
↑ Back to top -
-
Reasons That Support A Request To Proceed With A Pseudonym
Not all of the factors provided below will be relevant to all cases, and there may be additional factors, which we have not considered, but here are some factors that may guide the court:
-
The case involves matters that are highly sensitive and of a personal nature.
The subject matter of the lawsuit could bring embarrassment and publicity to the plaintiff’s family.
-
The plaintiff is particularly vulnerable to the harms of disclosure.
-
Children are involved.
If the images were recorded when the plaintiff was a minor, then the case for privacy is even stronger because of the recognition of various courts (and values underlying the existence of a separate juvenile justice system) that minors deserve extra privacy protection because of their vulnerability.
-
Identification poses a risk of retaliation of mental or physical harm.
The defendant has vowed to continue to harass the plaintiff, so there is a risk that the defendant will publicize the lawsuit to do so.
-
Identification presents other harms (describe the likely severity of those harms).
The plaintiff is experiencing intense humiliation and embarrassment due to the publication of the intimate material, and proceeding with a pseudonym brings some comfort. If the ability to proceed with a pseudonym is not granted, the plaintiff will experience further harm as a result of exercising her legal rights.
-
If the plaintiff is forced to disclose her or his true identity, that disclosure will amplify the injury that is at issue in the litigation.1
Linking the plaintiff’s true name and other identifying characteristics, such as usernames, with the content online will make it possible for anyone to connect the two pieces of information through a simple online search using a search engine such as Google, Bing, or Yahoo. With the increasing aggregation of information about individuals online, there is a chance that others could accidently come across this derogatory information about the plaintiff, which affect the plaintiff’s standing in the community.
The connection between the plaintiff’s true name and the intimate material that was published has already harmed the plaintiff. However, the harm that exists when privacy is violated is amplified according to the number of people who are aware, or could become aware, of the private information. If the plaintiff’s true name is used in the lawsuit, the lawsuit itself may further connect the plaintiff’s true name and identity to the intimate material online, thus increasing interest in and dissemination of the material.
-
The defendant is not prejudiced by allowing the plaintiff to proceed anonymously (and/or any prejudice can be mitigated by the court).
The defendant is aware of plaintiff’s true identity, so proceeding with a pseudonym does not prejudice the defendant.
-
The plaintiff’s identity has been kept confidential thus far.
-
The public interest in disclosure of the plaintiff’s identity in minimal.
The public has little legitimate interest in knowing the true identity of the plaintiff.
-
Discuss whether there are alternative mechanisms for protecting the plaintiff's identity such as sealing the case.
If the case is sealed, the public will know nothing about the issues being litigated.
-
The public has an interest in allowing the plaintiff to proceed with a pseudonym.
If the plaintiff is not able to proceed with a pseudonym, the plaintiff will likely not bring the case at all. The public has an interest in knowing that injustices, such as the one the plaintiff suffered, are occurring. And the public has an interest in seeing that those perpetrating privacy invasions are held liable for the harms that result.
Important! Please see our Notes of Caution section for important additional issues to consider before proceeding (or attempting to proceed) pseudonymously in Court.
↑ Back to top- See Memorandum of Law in Support of Plaintiff’s Use of Ficticious Name, p. 4 from Doe v. Smith, 04-cv-03173 (C.D. Ill. Jan. 5, 2006). ↩
-
-
Important Notes of Caution
Before seeking to proceed in court with a pseudonym, it's important to consider a number of issues. Below are a few we think are particularly important to consider specific to pseudonymity and privacy:
-
Think about proceeding with a pseudonym at the very beginning of a case.
The plaintiff’s name is often used in depositions and has been cited as a reason to deny a motion to proceed with a pseudonym in a case where a deposition was already in the record.1
The fact that a plaintiff filed her complaint using her full name undermined the merits of an invasion of privacy claim where one of the facts supporting the plaintiff’s claim was that the defendant disclosed the plaintiff’s initials in a deposition that occurred after the complaint was filed.2
-
Check the court’s local rules for any rules governing filing a claim with a pseudonym.
You should search for any mention of “pseudonym,” “anonymous,” and “fictitious name.” Local rules are specific to the court and give detailed instructions about how the particular court functions. They may include, among other topics, information about deadlines, word limits, and fonts required in court documents. The local rules can usually be found on a court’s website, but if you have trouble finding them online, you can call the clerk of the court for assistance. Here is an example of one such local rule from the Circuit Court of the State of Oregon for Multnomah County, Fourth Judicial District:
“In civil actions, the designation of a known party by a name other than the party’s true name shall be allowed only upon an order of the court. If ordered, the designation of such party shall be by use of such party’s initials or a fictitious name other than ‘Jane Doe’ or ‘John Doe’. The name ‘Jane Doe’ or ‘John Doe’ is reserved to be used for a party whose identity is unknown and the party is being designated as provided in ORCP 20 H.”
-
Even if permission to proceed with a pseudonym is granted at one point in the case, the permission may be revoked later on.
Be aware of this possibility when deciding whether to bring the case.
↑ Back to top -