Magistrate Judge Bristow Marchant's decision earlier this month in Doe v. Weston & Sampson Engineers, Inc. (D.S.C.) arose in a case where plaintiff sued alleging that a coworker had sexually assaulted her, including by "threatening her with a gun." Many (though not all) courts allow plaintiffs alleging sexual assault to sue pseudonymously in order to protect their privacy as to "matters of a sensitive and personal" nature (see pp. 1430-37 of this article). And the magistrate generally endorsed that position—but concluded that in this instance pseudonymity was unavailable:
[W]here a Plaintiff has not herself acted in a manner to preserve her privacy as to her allegations of sexual assault, this interest [in plaintiff's privacy] may be negated…. [Defendant] Roberts argues that other factors weigh against Plaintiff's request for anonymity here, as Plaintiff herself "has not acted to preserve her privacy" because she used her own name and photograph on social media in claiming that Roberts sexually assaulted her, thus unmasking her identity in a public forum. Roberts argues that "[b]ecause Plaintiff's reasons for anonymity (to preserve her privacy) are belied by her [own] actions, this factor weighs against anonymity." The Court is constrained to agree….
Based on a review of the parties' submissions regarding Plaintiff's Facebook posts, the Court concludes as follows. "Are We Dating the Same Guy?" ("AWDTSG") is a network of approximately 200 female-only Facebook groups that are location-specific. Within these groups, women can post screenshots of men's dating profiles to their specific location's group, asking other members of the group for "red flags" or "tea" (apparently referring to gossip or information) about the identified men…. To join a group, a member must be vetted and only individuals (presumably female) who have been admitted to the group are able to see the content posted by other members and to post content themselves. The rules applicable to these groups prohibit taking screen shots of content and sharing the information outside of the group.
The parties have identified two AWDTSG groups in which Plaintiff was a member and posted information about the issues involved in this case. First, there is a regional group for Greenville and Anderson Counties, which has approximately 16,700 members …. Second, there is a regional group for the Charleston and Columbia areas … with over 40,000 members….
In June or July 2023, a member of one of the two groups posted a request seeking information about Roberts. Plaintiff, using her full name and profile picture, responded to this post as follows:
To everyone, he SA me. I didn't know he had a criminal history. I'm putting this out there to protect anyone I can from him. He is DANGEROUS.
Although members of AWDTSG have the option to post anonymously, Plaintiff posted this comment using her real name along with a photograph. Moreover, Plaintiff's post was linked to her personal Facebook profile, which contained additional pictures and personal information.
Plaintiff acknowledges that she posted the information quoted above using her name, but contends she did not intentionally disclose her identity and later removed the post and ceased involvement in the Charleston/Columbia Group to preserve her privacy. However, in light of the foregoing, the Court finds that by using her own name in a post to a Facebook group consisting of over 40,000 individuals where she claimed that Roberts sexually assaulted her, Plaintiff has not acted to preserve her privacy in this matter, which weighs against allowing her to proceed anonymously in this case …. Plaintiff unmasked herself and published information about her sexual assault to at least 40,000 individuals, any one of whom could have then republished that information outside of the Facebook group where Plaintiff initially disclosed the information….
Plaintiff's argument that she did not intentionally disclose her identity is also not credible. Plaintiff acknowledges that she used her own name and profile picture in making her post, even though the Greenville/Anderson Group, for example, contains a notice advising members as follows:
We do our best to keep this space as safe as we can, but we can't guarantee that something said in the group won't be leaked by another member. Please be mentally prepared for the possibility that things you say here may get back to who you wrote about. We suggest posting anonymously as well as making the details of your story vague enough to not trace back to you.
Indeed, the "rules" for both groups include multiple notices and warnings about posting anonymously and the risks associated with sharing information. If Plaintiff wished to post anonymously, there is no evidence that she could not have done so. But she did not post anonymously. And, despite Plaintiff's argument that the information posted within the AWDTSG groups is not supposed to be shared, both groups provided multiple warnings that information could be shared or leaked to individuals outside of the groups….
Plaintiff argues that the "post should not vitiate her right to continued privacy" as "[s]he did not post her information on a public bill board, on a publicly viewable internet site, in the newspaper or on TV." Instead, she contends, her post was made to "closed Facebook groups dedicated to protecting women." However, Plaintiff's insistence that the post was made to a "closed" or "private" group that was not viewable by the general public is without merit. As an initial matter, the Court reiterates that the post was visible to at least 40,000 individuals, most of whom were no doubt complete strangers to Plaintiff. Even so, she specifically addressed the post to "everyone." And, despite the "closed" or "private" designation of the groups, Plaintiff should have known (especially given the warnings and notices in the rules governing the groups) that once the information was published, she had no control over how that information could be republished or disseminated beyond the four walls of those groups or to whom. And while the number of members who can access the information may not be dispositive, it is at least relevant that Plaintiff purposefully posted her content to a group with over 40,000 members….
{The Court notes that these findings are not meant to diminish the utility of such a group. To be sure, victims of sexual assault can benefit from support groups designed to assist in recovery from the trauma they experienced. That said, a Facebook group designed to share "tea" and "red flags" pertaining to potential dating partners is not the same as a support group for survivors of sexual assault. Plaintiff's lack of discretion in publishing information under her own name about her sexual assault to a large group of individuals in a group that promotes sharing "tea" and "red flags" on potential dating partners without the ability to limit the republication of such information to individuals outside the group belies her argument that she should be permitted to proceed in this action anonymously to protect her privacy.
The Court does not doubt that Plaintiff sincerely wishes to maintain her privacy in this matter, given the seriousness and sensitive nature of her allegations. However, her conduct outside of this litigation regarding her own publication of this sensitive information is dispositive as to whether she can demonstrate the "exceptional circumstances" needed to overcome the presumption that parties be named in litigation.} …
While given the nature of Plaintiff's allegations (sexual assault), [Roberts'] concerns may not have been sufficient to overcome Plaintiff's request for anonymity had she not herself undermined her request to maintain her privacy[,] the Court finds that Plaintiff should not be permitted to make allegations and accusations using her name against Roberts in a public forum while at the same time being allowed to proceed in a court action against him seeking damages while hiding behind the protections of anonymity….
Deborah B. Barbier represents Roberts.
The post No Pseudonymity for Plaintiff Who Had Posted About Alleged Sexual Assault Under Her Own Name on "Are We Dating the Same Guy?" Facebook Group appeared first on Reason.com.
