Note: This page covers information specific to Virginia. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.
Virginia follows a “good faith” test before unmasking an anonymous Internet speaker. The good faith test was first announced by a Virginia circuit court in In re Subpoena Duces Tecum to America Online and codified by the Virginia General Assembly in 2002 as Va. Code §8.01-407.1.
Va. Code § 8.01-407.1 requires that a party seeking the identity of an anonymous poster show that the poster has made one or more communications that are or may be tortious or illegal, (such as defamatory statements) or that the party requesting the subpoena has a legitimate, good faith basis to contend that it is the victim of “conduct actionable in the jurisdiction where the suit was filed” – i.e., has a legitimate claim recognized by the jurisdiction where the suit was filed. The party seeking the information must submit a copy of the communications at issue.
The Court of Appeals of Virginia has held that Va. Code § 8.01-407.1 does not require a plaintiff to submit evidence sufficient to demonstrate that statements are actionable in order to obtain the identity of an anonymous speaker. Rather, it is sufficient if the plaintiff submits sufficient evidence to support a good faith belief that the statements at issue may be actionable. In Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., No. 0116-13-4 (Va. Ct. App. Jan. 7, 2014), the Court considered a plaintiff's attempt to discover the identity of anonymous Yelp users who posted negative reviews of plaintiff's services. The Court found that if the anonymous users were not in fact former customers of the plaintiff, their negative reviews would be actionably defamatory; however, the plaintiff was not able to submit evidence proving that the users were not former customers. Nevertheless, the Court upheld a subpoena for the users' identities upon the plaintiff's showing that it was unable to confirm that the users were customers after a good faith review of the records in its possession. Slip op. at 21-22.
The party may be seeking the poster’s identity in regards to a claim the party is bringing against the poster, or the party may mean to use the poster as a witness. Either way, the statute requires that the party seeking the information show that other “reasonable efforts” to identify the anonymous communicator have failed and that the anonymous poster’s identity is important, central, or directly and materially relevant to a claim or defense.
What The Subpoenaed Entity Must Tell You
When an ISP or other entity receives a subpoena requesting your identifying information, the statute requires that the ISP notify you of the subpoena within five business days of receipt. The ISP must notify you by e mail, if it has your e mail address, and it must also send a copy of the subpoena to your last known address, if available on file. The statute provides a form that the party requesting the information must send to the ISP. The ISP must in turn send the form to you by e mail, if available, and mail. The form states who is seeking the subpoena, that the ISP will be required by law to respond by providing the requested information if no written objection is filed with the court, and that you have a right to file a written motion opposing the subpoena with the clerk of court, as discussed below.
How to File a Motion to Quash
Any “interested person,” such as an anonymous poster whose identity is a target of the subpoena, may file a written objection, motion to quash (a motion requesting that the subpoena be voided or terminated), or motion for a protective order (a court order protecting against the disclosure of your information). If you are the anonymous poster, this means that the ISP or other entity to which the subpoena is addressed may file a written motion opposing the subpoena on your behalf, or that you may file such a motion yourself. The statute indicates that you may file your motion anonymously, signing it “John Doe” and including your e mail nickname or other relevant online alias.
You must file such a motion at least seven business days before the date on which disclosure is sought under the subpoena. Because of the various deadlines set by statute, you could have as few as 10 days to respond to a subpoena after you receive notice of it. As a result, if you receive notice of a subpoena for your identity from your ISP, you should contact a lawyer immediately to ensure there is sufficient time to respond to the subpoena. You also may want to refer to the section on Responding to Lawsuits for more information.
If no written motion opposing the subpoena is filed, the ISP will be required by law to respond to the subpoena by providing the information sought.
You must serve any papers related to your motion on the party seeking the subpoena and the party to whom the subpoena is addressed on or before the date you file the motion with the court. If the ISP seeks to quash the subpoena on your behalf, it must serve any papers relating to the motion on the party seeking the subpoena and you, the anonymous poster, on or before the date of filing.
In addition to stating the grounds relied upon for denying the disclosure, the motion to quash must address “to the extent feasible”:
- whether the identity of the anonymous communicator has been disclosed in any way;
- whether the subpoena fails to allow a reasonable time for compliance;
- whether the subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies, or
- whether the subpoena subjects a person to undue burden.
After a written motion is filed, any interested person may also request a hearing from the court. If you are the anonymous poster, you must be informed of the hearing by registered mail at your last known address.
When the Subpoenaed Entity Can Comply to the Subpoena
If the ISP or other entity to whom the subpoena is addressed wishes to comply with the subpoena and reveal your personal identifying information, the statute prohibits it from doing so earlier than three business days before the date on which disclosure is due. This rule is designed to give you the opportunity to object before disclosure is made. The ISP must still notify you of the subpoena by e mail, if available, and by mail, giving you the opportunity to object on your own behalf.
Because there have been no cases involving Code § 8.01-407.1, no court has interpreted its provisions. If you know about a cases involving Code § 8.01-407.1 in Virginia, please contact us.