Us Weekly Allegedly Used Married Woman's Photo as Picture of Mother of Elon Musk's Twins; Can She Sue

for libel as a Jane Doe?

That's the question in Doe v. A360 Media LLC (N.D. Ga.), filed yesterday (and see the Motion to Proceed Pseudonymously).

Pseudonymous litigation generally isn't allowed in defamation cases, even where plaintiff reasonably fears that publicizing her name would increase the harm caused by the defamation—for instance, when the defamatory statement had only been published to a limited group of people. Likewise, here the defamatory statement includes only a photo (which a limited group of people would recognize) and not the plaintiff's name; but that too shouldn't generally justify an exemption from the norm that litigation in public courts should be conducted in public, and the parties' names should likewise be made public. More generally, pseudonymity isn't usually allowed just to avoid risk of reputational or economic harm, risk that is present (certainly for defendants, and often for plaintiffs as well) in a vast range of cases. See The Law of Pseudonymous Litigation, pp. 1457-60.

Query, though, whether the analysis would be any different here, based on the specific factual details of the case: For instance, should it matter that, unlike a typical plaintiff said/defendant said libel dispute, in this case plaintiff's credibility is unlikely to be relevant, since her claim is that she just isn't the person named in the Us story. And courts do indeed sometimes do allow pseudonymity to protect reputation in particular kinds of situations (such as cases over allegedly wrongful expulsions from college), though generally not in ordinary defamation cases.

I'm on the run for the next several days, so I can't speak to all this in detail, but since this blog is The Premier Source for Pseudonymity News (well, the only source that has any specialization in pseudonymity news), I thought I'd flag it for our readers.

Comments

[KenveeB]

What's the point of the pseudonym? Shouldn't she want to have a court case saying "that's not me"? Isn't that the entire point of her suit?

[Ken Arromdee]

If a member of the audience already knows who she is, saying "it's not me" protects her reputation.

But if a member of the audience hasn't heard of her, publicizing her name is bad. People will read about someone winning a libel suit and now think "not every libel suit is won by the right person, there's a 10% chance she really did it". If they haven't heard of her, there's a 0% chance they'll think that.

Not to mention people who'll Google her name and just make bad assumptions. I can see an employer thinking "she sued someone. What if I hire her and she sues me? The chance of that is pretty tiny, but I can instead hire this second person who doesn't have a tiny chance".

[MaddogEngineer]

Streisand effect

[Rossami]

Interesting argument but I think the answer should be 'no'. And I think a truthful plaintiff in this situation should want it to be 'no'. After all, the entire point is to exonerate herself by demonstrating that the picture is not her.

That said, I remain open to the argument that pseudonymity should be granted more liberally while a case is still in progress but revoked upon decision. That seems to me a plausible workaround for our system's inability to live up to the promise of a speedy trial.

[EscherEnigma]

Look, I'm not going to opine on the legal principles. But if someone publicly claimed that I had sex with Musk, I'd damn-well try to sue too.