Whereas many Internet defamation cases involve anonymous defendants, there are many situations in which a plaintiff wants to remain anonymous. For example, a victim of defamatory comments of a sexual nature may wish to remain anonymous to avoid public humiliation.

In general, a plaintiff must place his name on a pleading in order to sue in federal court because courts have held that the public has a right to know in such instances. However, a court may allow a litigant to bring suit anonymously under certain, limited circumstances. In determining whether to make this allowance, the court will conduct a balancing test, weighing the plaintiff’s need for anonymity against the interests of public disclosure.

In a recent case before the United States Court of Appeals for the Second Circuit, the Court reversed a lower court’s decision which dismissed a plaintiff’s claim merely because she had filed the suit without using her name. Sealed Plaintiff v. Sealed Defendant #1, 06-1590-cv (2nd Cir. 2008). In that case, a female plaintiff who claimed to have been the victim of a sexual assault sought to file a lawsuit against the alleged perpetrator without disclosing her name. In support of its decision, the Court cited the Ninth Circuit case Does I through XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000), which outlined a standard for determining whether a litigant may file suit anonymously. There, the Court found that a plaintiff may only sue anonymously if his need for anonymity outweighs both the prejudice to the opposing party and the public’s interest in knowing the plaintiff’s identity.

Applying that same standard, the Second Circuit Court in Sealed Plaintiff outlined a series of factors to be considered in conducting the balancing test, which are: (a) whether the litigation involves matters that are highly personal or sensitive, or a plaintiff that is particularly vulnerable; (b) whether there is a risk of retaliation against the party filing suit or any innocent non-parties; (c) whether the identification presents other harms and the severity of those harms; (d) whether plaintiff is particularly vulnerable to possible harms of disclosure; (e) whether the suit is challenging actions of government or that of private parties; (f) whether defendant is prejudiced by allowing plaintiff to press claims anonymously; (g) whether plaintiff’s identity has thus far been kept confidential; (h) whether public’s interest in litigation is furthered by requiring plaintiff to disclose his identity; (i) whether because of the purely legal nature of issues presented or otherwise there is atypically weak public interest in knowing the litigants identities; and (j) whether there are any alternative mechanisms for protecting confidentiality of plaintiff. Ultimately, the Court determined that given the nature of the claim, the plaintiff’s interest in keeping her name anonymous was more important than the public interest in knowing her identity.

In light of this decision, potential plaintiffs should note that a court may allow them to file suit anonymously in certain instances. However, they should also be wary that courts are likely to allow them to do so only under narrow circumstances, such as where the facts or allegations surrounding a claim are of a particularly sensitive or personal nature.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

PLEASE NOTE Meetings by appointment only in Union, NJ; New York, NY; Philadelphia, PA & Dallas, TX offices. Legal services generally performed from the Union, NJ office. The firm has attorneys licensed in New Jersey, New York, Pennsylvania, Texas and/or the District of Columbia. In limited circumstances, the firm may practice in other states under the prevailing multi-jurisdiction rules or through pro hac vice admission.


ATTORNEY ADVERTISING. Any questions regarding this website should be directed to Gary D. Nissenbaum, Esq. (gdn@gdnlaw.com), who is responsible for the content of this website.

© 2021 Nissenbaum Law Group, LLC. All rights reserved.

Disclaimer | Privacy Policy