The Journal of The DuPage County Bar Association

Back Issues > Vol. 30 (2017-18)

Supreme Court Rule 224-Discovering the Identity of an Anonymous Internet Poster
By Christine Olson McTigue

Anonymous speech has a long and illustrious career in this country. Think of Thomas Paine’s “Common Sense,” or The Federalist Papers. Today, instead of putting thoughts to paper, many people post their thoughts on the internet. You have probably noticed anonymous reviews of local businesses, or anonymous comments posted on a news site. Many of these reviews and comments are insensitive, caustic, mean, or downright defamatory. Most of us would never publish a defamatory statement in writing, but some people seem to have no qualms about posting the same statement anonymously online.

While the law respects anonymous speech, and the First Amendment provides protection for free speech on the internet, the law also provides a remedy to those subjected to defamatory comments. The mere fact that a statement is posted on the internet does not mean it is hyperbole (and not capable of being defamatory). What is a person’s redress in this day of anonymous internet postings?

At the intersection of these two protected interests is Supreme Court Rule 224, which provides a mechanism to discover the identity of someone who, without providing a real name, posts a defamatory comment online. The procedure under Rule 224 is not, however, as simple as asking for the poster’s name. Instead, a petition must first comply with the procedural requirements of Rule 224, which includes the requirement that the petition must allege a claim for defamation that is sufficient to withstand a section 2-615 motion to dismiss.

Supreme Court Rule 224. Supreme Court Rule 224 is entitled “Discovery Before Suit to Identify Responsible Persons and Entities” and is a tool to discover the identity of an unidentified individual who may be liable to the plaintiff. The rule was adopted in 1989 and the Committee Comments from those pre-internet days are positively quaint. The comments state in part: It [Rule 224] provides a mechanism for plaintiffs to ascertain the identity of potential defendants in a variety of civil cases, including Structural Works Act, products liability, malpractice and negligence claims. The rule will be of particular benefit in industrial accident cases where the parties responsible may be known to the plaintiff ’s employer, which may immunize itself from suit.

Rule 224 provides:
A. Procedure.

(1) Petition.

(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.

(ii) The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask for an order authorizing the petitioner to obtain such discovery. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify each person and the time and place of the deposition.

(2) Summons and Service. The petitioner shall serve upon the respondent or respondents a copy of the petition together with a summons in a form substantially as follows:

B. Expiration and Sanctions. Unless extended for good cause, the order automatically expires 60 days after issuance. The sanctions available under Supreme Court Rule 219 may be utilized by a party initiating an action for discovery under this rule or by a respondent who is the subject of discovery under this rule.

C. Expenses of Complying. The reasonable expenses of complying with the requirements of the Order of Discovery shall be borne by the person or entity seeking the discovery. In the context of a defamation action, courts have addressed the balance between a speaker’s right to anonymity versus the rights of a would-be plaintiff. While anonymous speech may be protected, there is no constitutional right to defame someone. Anonymous internet speakers do not enjoy a higher degree of protection from defamation claims than the person who has a claim for defamation. To preserve this balance, the following requirements for a petition under Rule 224 were adopted:1

(1) The petition must be verified; (2) must state with particularity facts that would establish a cause of action for defamation; (3) can seek only the identity of the potential defendant and no other information necessary to establish the cause of action of defamation; and (4) is subjected to a hearing at which the court determines that the petition sufficiently states a cause of action for defamation against the unnamed potential defendant.2

One should not confuse Rule 224 with Section 2-402 of the Code of Civil Procedure, which governs respondents in discovery.3 The two mechanisms are not equivalent. Rule 224 is meant to supplement section 2–402. Section 2–402 is used after at least one defendant has been named in an existing suit and the plaintiff seeks the identities of other defendants. Rule 224, on the other hand, is the mechanism for discovering the identity of an initial defendant.4

Requirements for a Rule 224 Petition. Returning to the requirements of a petition, the first requirement is that petition be verified. In an unpublished decision, the Appellate Court, First District, recognized that a petition can be verified by having the petitioner be sworn under oath before a notary, or using the verification found in section 1-109
of the Code of Civil Procedure.5 The First District affirmed the dismissal of a Rule 224 petition on the sole basis that the petition was not verified. “Without a proper verification, the petition does not meet the basic eligibility requirements for proceeding under Rule 224.”6

The second requirement is that the petition must state the reason that the proposed discovery is necessary. In other words, the petition must state with particularity facts that would establish a cause of action for defamation. This requirement is discussed further in the next section.

The third requirement limits discovery to the identity of the potential defendant. The petition cannot seek any other information necessary to establish the cause of action for defamation.7 A petition is inapplicable where the identity of a potential defendant is known.8

The fourth requirement is that the trial court conduct a hearing. At the hearing, the trial court must insure that the above three requirements are met. The purpose of the hearing requirement is to prevent fishing expeditions.9

When and where is the Rule 224 petition filed? The rule provides that the petitioner “may file an independent action for such discovery” and that the action for discovery “shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides.” In Hadley v. Doe, the petitioner followed the trial court’s suggestion and filed an amended complaint containing a count pursuant to Rule 224.10 The Illinois Supreme Court held that in this situation, dismissal was too harsh a sanction, but emphasized that “the proper way to invoke Rule 224 is before suit commences.”11

As for where the petition should be filed, the Appellate Court, Fifth District, held that the terms of the rule are a statutory venue provision, not a provision relating to personal jurisdiction.12

Standard for Determining the Sufficiency of a Rule 224 Petition. Of all the requirements for a Rule 224 petition, probably the most important is whether the petition states a claim for defamation. The Appellate Court in Maxon v. Ottawa Publishing Company engaged in a lengthy analysis regarding the standard to be used by the trial court in making this determination, and concluded that the appropriate standard is whether the petition would withstand a section 2-615 motion to dismiss.13 The Illinois Supreme Court later approved this standard in Hadley v. Doe.14 The reasoning behind this standard was explained as:

. . . we recognize a plaintiff’s right to seek redress for unprotected defamatory language but also avoid a construction of Rule 224 that would set forth a standard so low as to permit individuals to obtain the identity of those engaging in protected speech and effectively chill or eliminate the right to speak anonymously.15

As a reminder, a section 2-615 motion attacks the legal sufficiency of the complaint. It is the petitioner’s burden to show that he can allege facts to support a cause of action; the unidentified respondent is not required to file a motion to dismiss.16 Once the petitioner has alleged a prima facie case for defamation, the defendant has no first amendment right to balance against the petitioner, since there is no first amendment right to defame.17

The First and Fifth Districts of the Appellate Court have held that an order disposing of a Rule 224 petition is appealable pursuant to Supreme Court Rule 301.18 The Second District agreed in Hadley v. Doe, but Justice Birkett disagreed in a dissenting opinion.19 The Appellate Court’s scope of reviewing an order disposing of a Rule 224 petition is limited to the four corners of the petition.20

Stating a Claim for Defamation. In order to determine if a Rule 224 petition can survive a motion to dismiss, a quick discussion of the law of defamation is in order. (A complete discussion of the law governing defamation claims is well beyond the scope of this article.) In order to state a claim for defamation, a plaintiff must present facts showing that the defendant made a false statement about the plaintiff; the defendant made an unprivileged publication of that statement to a third party; and the publication caused damages.21

Illinois recognizes defamation per se and defamation per quod. There are five categories of statements that are considered defamatory per se. They are: (1) words imputing the commission of a crime, (2) words imputing an infection with a loathsome communicable disease, (3) words imputing an individual’s inability to perform his employment duties or lack of integrity in performing those duties, (4) words imputing a lack of ability in an individual’s profession or prejudicing an individual in that profession, and (5) words imputing an individual’s engagement in fornication or adultery.22

Even if an alleged statement falls into one of these categories, the statement may not be actionable if the defendant can demonstrate that the statement is reasonably capable of an innocent construction. Under the innocent construction rule, a court must consider the statement in context and give the words of the statement, and any implications arising from them, their natural and obvious meaning.23 If the statement may reasonably be innocently interpreted, it cannot be actionable. However, when the defendant clearly intended and unmistakably conveyed a defamatory meaning, a court should not strain to see an inoffensive gloss on the statement.24 The determination of whether a statement is capable of a reasonable, innocent construction is a question of law for the court to decide.25

A key component to a defamation claim is that a statement of fact was made. Courts look to three factors to make this determination: whether the statement has a precise and readily understood meaning, whether the statement is verifiable, and whether the statement’s literary or social context signals that it has a factual content.26 But what about statements of opinion? Opinions do not have automatic protection from a defamation claim; “there is no artificial distinction between opinion and fact: a false assertion of fact can be defamatory even when couched within apparent opinion or rhetorical hyperbole.” 27 A defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as stating actual fact.28 To make this determination, a court refers to the factors set forth above. Even if a statement is couched as an opinion, if the statement is a fact, and it is false, it is actionable.29

Finally, a defamatory statement is not actionable if it is privileged. Regarding the defense of privilege, the First and Second Districts of the Appellate Court appear to have a subtle difference of approach as to the timing of raising that defense. In Dobias v. Oak Park and River Forest H.S. Dist. 200,30 the First District has held that privilege is a defense that can be raised even in a section 2–615 motion if the defense is apparent on the face of the complaint. Reviewing the granting of a 2-615 motion, the court decided that the complaint sufficiently alleged abuse of privilege, to hold that defense was not valid.

Dobias, however, did not involve a Rule 224 petition. The Second District addressed a motion to dismiss a Rule 224 petition in Doe v. The Catholic Diocese of Rockford.31 In Doe, the defendants raised the defense of clergy-penitent privilege to a Rule 224 petition. The Second District stated that “strictly speaking” privilege is an affirmative defense which should not be considered when ruling on a section 2-615 motion. The court, nevertheless, considered the defense of privilege because the defendants’ motion to dismiss met the requirements of a section 2-619.1 combined motion to dismiss.32

While privilege may be an affirmative defense, in the context of a Rule 224 petition, the petition must state a claim for defamation. If the existence of a privilege is apparent from the face of the complaint, there is no reason why this defense could not be raised in a section 2-615 motion attacking the face of the complaint. The other type of defamation recognized in Illinois is defamation per quod. A cause of action for defamation per quod may be brought in two circumstances. The first is where the defamatory character of the statement is not apparent on its face and resort to extrinsic circumstances is necessary to demonstrate its injurious meaning; the plaintiff must plead and prove extrinsic facts to explain the defamatory meaning of the statement.33

The second circumstance of defamation per quod is where a statement is defamatory on its face, but does not fall within one of the limited categories of statements that are actionable per se. In this second type of per quod actions, the plaintiff need not plead extrinsic facts, because the defamatory character of the statement is apparent on its face and resort to additional facts to discern its defamatory meaning is unnecessary. The action is one for defamation per quod “simply because the statement does not fall into one of the actionable per se categories.”34 Unlike defamation per se case, in defamation per quod action the plaintiff must plead and prove special damages to recover.35

Conclusion. The law respects anonymous speech, but not defamatory speech. You or your client may want to know who posted online an anonymous comment that is not fair, not nice, or downright mean. Unless that statement is defamatory, however, a claimant may not succeed using Supreme Court Rule 224 to discover the name of the person who posted that comment. Even if you can meet the requirements of Rule 224, discovery under that rule is not a fishing expedition to prove your case, but is limited to the name of the would-be defendant.

1. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386 ¶¶15-17.
2. Maxon v. Ottawa Publishing Co., 402 Ill.App.3d 704, 711 (3d Dist. 2010).
3. 735 ILCS 5/2-402.
4. Hadley v. Doe, 2014 IL App (2d) 130489 ¶¶64-66, aff’d, 2015 IL 118000.
5. National Private Client Group, Inc. v. Fatwallet, Inc., 2016 IL App (1st) 151172 ¶15.
6. Id. at ¶17.
7. Maxon v.Ottawa Publishing Co., 402 Ill.App.3d at 711.
8. Id. at 710.
9. Id. at 711.
10. Hadley v. Doe, 2015 IL 118000 ¶10.
11. Id. at ¶23.
12. Guava LLC v. Comcast Cable Communications, LLC, 2014 IL App (5th) 130091 ¶59.
13. Maxon, 402 Ill.App.3d at 712.
14. 2015 IL 118000 ¶27.
15. Stone, 2011 IL App (1st) 093386 ¶16.
16. Stone, 2011 IL App (1st) 093386 ¶18.
17. Maxon, 402 Ill.App.3d at 714.
18. Beale v. EdgeMark Financial Corp., 279 Ill.App.3d 242 (1st Dist. 1996); Gaynor v. Burlington Northern and Santa Fe Railway, 322 Ill.App.3d 288 (5th Dist. 2001).
19. 2014 IL App (2d) 130489 ¶¶62-69, ¶¶73-82.
20. Doe ex rel. Doe v. Catholic Diocese of Rockford, 2015 IL App (2d) 140618 ¶22.
21. Hadley v. Doe, 2015 IL 118000 ¶30.
22. Doe ex rel. Doe v. Catholic Diocese of Rockford, 2015 IL App (2d) 140618 ¶19.
23. Green v. Rogers, 234 Ill.2d 478, 499 (2009) (emphasis in original).
24. Id. at 500.
25. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 90 (1996).
26. Hadley v. Doe, 2015 IL 118000 ¶41.
27. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 581 (2006).
28. Solaia at 581.
29. Solaia at 581.
30. 2016 IL App (1st) 152205 ¶106.
31. 2015 IL App (2d) 140618.
32. Doe, 2015 IL App (2d) 140618 ¶51.
33. Bryson v. News America Publications, Inc., 174 Ill.2d at 103.
34. Bryson at 103.
35. Bryson at 103.

Christine Olson McTigue is a past editor of the DCBA Brief and serves on the Board of Directors of the DuPage Bar Foundation. She received her B.A., magna cum laude, Phi Beta Kappa, from the University of Minnesota; and her J.D. from Loyola University of Chicago.

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