Illinois state bar association OctoBER 2015 vol 61 no. 3 Trial Briefs The newsletter of the Illinois State Bar Association’s Section on Civil Practice & Procedure

A defamation action under Rule 224 is not afforded First Amendment protections so long as the ‘necessity’ requirement is met

By George S. Bellas and Misty J. Cygan

Hadley v. Doe, 2015 IL 118000 as “Fuboy.” Using this information, Hadley suits brought against fictitious parties are The following two comments were filed a defamation per se action against legally invalid or without legal effect, is posted on the Internet by “Fuboy” “Fuboy” on the basis that the comment inapplicable because the typical concerns in response to an article published by that Hadley was a “Sandusky waiting to of adequate notice and preventing fraud Freeport Journal Standard discussing be exposed” inputted the commission of a on the courts were not present in this case Plaintiff Bill Hadley’s run for election to crime to Hadley. as Fuboy was represented by counsel and the county board: “Hadley is a Sandusky Comcast contested the court’s order was not disputing his identity as Fuboy. waiting to be exposed. Check out the view directing it to provide the identity of Bogseth v. Emanuel, 166 Ill.2d 507 (1995). he has of Empire1 from his front door.” Fuboy. In response, the circuit court The Court found Bogseth distinguishable “Anybody know the tale of Hadley’s suicide advised the parties that Illinois Supreme from the instant case because Plaintiff had attempt? It is kinda ‘It’s a Wonderful Life’ Court Rule 224 should be utilized to filed his cause against a real person using with Potterville win[n]ing out. We can discover the identity of Fuboy. Rule an adopted alias as opposed to filing suit just be happy that Stephenson County is 224 can be used to identify potential against an unknown John Doe. fortunate enough to have this guy want defendants prior to the commencement It was further determined that Rule to be of ‘service’ again.” Online readers of a lawsuit. However, under Rule 224’s necessity requirement can be satisfied of the journal are required to complete a 224, a party has to show that relief is by applying the section 2-615 motion to registration process before being allowed “necessary.” In a defamation action such dismiss standard when a defamation action to post comments on an article. as Hadley’s, the necessity must be carefully has been alleged. In applying the standard Hadley decided to take action against considered in order to protect the online for stating a cause of action for defamation, Fuboy and filed a defamation suit commentator’s first amendment rights to that a plaintiff must plead facts showing against the parent company of Freeport, engage in free speech. The circuit court the defendant (1) made a false statement Gatehouse Media. In order to obtain correctly applied the standard of dismissal about the plaintiff; (2) the defendant Fuboy’s identity, Hadley first needed to under a 2-615 motion to dismiss in order made an unprivileged publication of that obtain the Internet Protocol (IP) address to determine whether relief under Rule statement to a third party; and (3) the from Fuboy’s Internet service provider. 224 was necessary. The appellate court publication caused damages, the Court After identifying that Comcast was Fuboy’s affirmed. found that Fuboy’s comments were indeed Internet service provider, Hadley then On appeal, the Court determined that defamatory per se. The Supreme Court issued a subpoena to Comcast seeking the an alias was sufficient for identifying a noted that typically Rule 224 must be identity of the IP address. After being court known defendant, in this case Fuboy, and utilized before an action is commenced. ordered, Comcast disclosed the subscriber the general rule set forth in Bogseth, that However, in the instant matter, because Trial Briefs ▼ October 2015 / vol 61 / no. 3 the circuit court had instructed the parties In sum, Rule 224 should be utilized to ______to utilize Rule 224 after the action had obtain the identity of an online user for 1. Empire refers to an elementary school in been commenced, the Court would not defamation claims. However, the action will Freeport, Illinois. invalidate Hadley’s request for relief under only survive if the allegations pass muster Rule 224. under the standard for section 2-615. 

This article originally appeared in the Illinois State Bar Association’s Trial Briefs Newsletter, Vol. 61 #3, october 2015. It is reprinted here by, and under the authority of, the ISBA. Unauthorized use or reproduction of this reprint or the ISBA trademark is prohibited.

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