ILLINOIS (ECWd) –
Governor Pritzker signed Public Act 103-0439 (Civil Liability for Doxing Act) which becomes effective on January 1, 2024.
What this law does, is give people the ability to file civil action against anyone who violates the Act by publishing “personally identifiable information” on the other person.
We understand this was or should have been designed to keep people from being “doxed” simply because others don’t like what they write or talk about and the doxers are simply trying to make their lives miserable and cause them to lose their livelihoods (read this for more information: HERE). Yes, we agree that private individuals should have recourse for clearly hateful and malicious attacks, but this Act leaves the field wide open for attacks on free speech, even though it carves out that exception.
This will surely be litigated, mainly because of the state’s definition of “personally identifiable information.”
“Personally identifiable information” means any information that can be used to distinguish or trace person’s identity, such as name, prior legal name, alias, mother’s maiden name, and date or place of birth in combination with any other information that is linked or linkable to a person such as:
(1) social security number, home address, phone number, email address, social media accounts, or biometric
(2) medical, financial, education, consumer, or employment information, data, or records;
(3) any other sensitive or private information that is linked or linkable to a specific identifiable person, such
as gender identity, sexual orientation, or any sexually intimate visual depiction; or
(4) any information that provides access to a person’s teleconferencing, video-teleconferencing, or other digital meeting room.
So, if for example we publish, after January 1, 2024, that Governor Pritzker is the governor of the state of Illinois, that would be considered “personally identifiable information” merely because we would have used his name in combination with his employment information.
An individual could no longer publish a post on social media, for example, that “State Senate Candidate Billy Bob filed bankruptcy last year and did not graduate high school” – because that would have his name in combination with his financial information and his educational information. This example could possibly be construed to be violative of Section 10(a)(2)(i) and (ii) by causing the Candidate to suffer economic injury if he was not elected due in part by the publishing of the information.
The saving defense of such publication(s): Section 10(b)(3) would shield activities protected under the First Amendment of the United States Constitution or the Illinois Constitution. However, the Act itself will surely be used against those individuals who speak out against public officials, public employees, or candidates for public office, and they will be forced to incur legal expenses defending constitutionally protected speech.
The courts “may” award successful defendant’s attorney fees and costs, provided the court finds the complaint was frivolous, baseless, or brought in bad faith – which would incur more legal fee to maybe have attorney fees and costs paid by an unsuccessful plaintiff.
The Act should be amended to state the court “shall‘ award attorney fees and costs to successful defendants if the speech is considered protected under the First Amendment of the United States Constitution and the Illinois Constitution to protect potential defendants from needless litigation expenses.103-0439