Defamation on the Internet

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is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

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The internet has changed a lot of things.  Not the least of which is the amount, frequency and scope of defamation.  This article outlines the impact of the internet on peoples’ ability to defame and be defamed, and touches on how to track down, identify, and sue defaming individuals.

 

A.  DEFAMATION GENERALLY

Putting aside the internet for a second, a cause of action for defamation exists when the plaintiff (the person defamed) can prove that the defendant has made a defamatory statement or statements to a third party or parties regarding the plaintiff.

A defamatory statement is any statement that would lower the reputation of the plaintiff in his or her community in the estimation of “reasonable” persons.

Defamation is a strict liability tort.  What this means is that once the plaintiff has established that defamatory words were published, the onus shifts to the defendant to prove that the words complained of are defensible.  The usual defences to a defamation claim are that the words claimed to be defamatory were (a) true; (b) fair comment; or (c) published on an occasion of privilege.

The defence of “truth” is relatively self explanatory.  The defence of “privilege” is beyond the scope of this article but is discussed in a bulletin you can access by following this link.

The defence of “fair comment” protects comments as long as they are an opinions which can be honestly held by any person on the proven facts.  Even if the defence is established it can be defeated when the plaintiff can prove that the defendant acted maliciously.

 

B.  DEFAMATION ON THE INTERNET

Traditionally, the effectiveness of defamation, libel or slander, were relatively limited.

Slander for example, is a type of defamation which has no permanent record, ie. spoken word.  Thus the scope of the defamation is limited to the audience evidencing the slander as it occurs.  Certainly slanderous statement can, and could have, had a significant impact on people, but for the most part the reach is limited.

Conversely, libel is defamation with a permanent record, like a newspaper, letter, website posting, email, or a radio or TV broadcast.  Before the internet, only a relatively small number of individuals had the ability to publish statements to large audiences.  Most people do not appear on TV or the radio or write in newspapers.  Therefore, for most people, libel, like slander, would have a limited audience – ie. those in receipt of a letter sent.

Nowadays anyone can post or make comments easily accessible by anyone with internet access.  It gets worse.  Before Google became so incredibly effective, Person X could go onto a blog that no one visits and spew all kinds of offensive and defamatory comments about Person Y and it’s unlikely anyone would probably read it.  However, now, if anyone wants to know all about Person Y they don’t just access and review Person Y’s self-prepared profile on Linkedin, Facebook etc., rather they “Google” (ie. search) Person Y’s name.  This search is likely to take the searching person right to the defamatory statements about Person Y.

Therefore, defamatory statements on the internet will almost certainly find their way into the sights of those who want to know about a defamed individual.  The same is equally true, sometimes moreso, for businesses.

All of the above has greatly increased peoples’ ability to defame and be defamed.  Further complicating things is that the defaming individuals can hide behind the guise of anonymity which they feel can protect them from legal consequences.

The balance of this article will concern tracking down anonymous posters and will assume that defamation exists at law – ie. that if the plaintiff can get the culprits before a judge then the plaintiff will have no problem proving that the plaintiff individual or company.

 

C.  DEALING WITH ANONYMOUS DEFAMERS

In Canada lawsuits can be commenced even if the defendant has not yet been identified.  In the claim the defendants are listed as John Doe or Jane Doe.  The plaintiff may be able to identify the John Doe defendant(s) if any of the denfants’ following information is known:

  1. IP address;
  2. email provider;
  3. ISP provider;
  4. web site host provider;
  5. anonymous remailer and/or browsing provider; and
  6. IP mask or VPN provider.

In some scenarios a potential plaintiff is starting with very little information.  They may only have an uninformative email address OR a blog with an anonymous blogger OR a tweet from an anonymous twitterer.

In other cases a potential plaintiff may have been able to acquire the defamer(s) IP addresses.

In either scenario the first step will be for the plaintiff will be commencing a claim against the John Doe defendant(s).  The claim will be drafted with all the information available at that time, will set out the comments posted and how the legal elements of defamation have been satisfied.

The claim must then be issued.  It is at this point that the plaintiff hits a roadblock.  After issuance of a claim the next step is typically to serve the claim on the defendant(s) personally.  However, where the defamers are anonymous then there are no identifiable defendants and, therefore, the plaintiff will be unable to effect service and proceed with its claim.

To identify the John Doe defendants the plaintiff must bring a motion pursuant to Rules 30.10 and 31.10 to compel a third party to produce whatever “documents” are their possession to help the plaintiff identify the defaming person(s).

Rule 30.10 permits production of non-parties with leave.  Rule 31.10 permits discovery of non-parties with leave.

The case which typically gets credit for getting the ball rolling on third party production to identify anonymous online defamers is Irwin Toy Ltd. v. Doe, (2000) CarswellOnt 3164 (“Irwin Toy“).  In Irwin Toy the defendant sent an allegedly defamatory email about the plaintiff to 75 email recipients.   The plaintiffs were able to track down the IP address and the internet service provider used by the defendant – iPrimus Canada.   Wilkins J. found  in favour of the plaintiffs for the following reasons:

1.  The plaintiffs were able to demonstrate on a prima facie basis that defendant released words capable of being construed by a properly charged jury as being defamatory.

2.  It would be unfair to require the moving party to attempt to proceed without having the oppotinity to identify the true defendant.

3.  The plaintiffs satisfied the court, pursuant to Rule 31.10,  that they have been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery.

4. The plaintiffs satisfied the court, pursuant to Rule 31.10, that there is reason to believe that the person sought to be examined has information relevant to a material issue in the action, stating that “the true identity and appropriate address for service for a defendant could arguably always be something of such importance as to require its disclosure” (para 17).

Additonally, the court was supportive of the plaintiffs motion because it “would be unjust and expensive to require a plaintiff to commence a potentially losing law suit just to obtain the identity of the real tortfeasor from the service provider” (para 19).

Perhaps the most recent and/or comprehensive analysis is in Warman v. Wilkins-Fournier, (2011) ONSC 3023 where the plaintiffs did not yet have the IP addresses of the alleged defamers – 8 John Doe defendants.  In this case the plaintiff sought e-mail, subscriber information, and IP addresses for the john doe defendants from two other defendants (the “Fourniers”) who ran the website on which the alleged defamatory posts were made.

As a point of helpful clarification, Blishen J., clarified that IP addresses and email addresses constitute documents for the purposes of discovery of documents in the Rules of Civil Procedure.   Blishen J. applied the following test in determining whether the requested documents should be produced:

(1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;

(2) whether the [plaintiff] has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;

(3) whether the [plaintiff] has taken reasonable steps to identify the anonymous party and has been unable to do so; and

(4) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

In Warman the documents were ordered produced.  Further, Bishen J. made it clear that there is a relatively low threshold for establishing prima facie defamation and that a finding of whether defamation actually occurred is a matter left to the trier of fact at trial.

 

D.  CONCLUSION

The courts are becoming more sophisticated in order to address the increasingly problematic issue of anonymous online defamation.

Note that where a potential plaintiff does not yet have the IP address of the defamer(s) then at least two motions may be required.  The first in order to secured the IP addresses from the third party websites on which the comments were made.  The second motion to identify the individuals registrants behind the IP addresses from the ISPs.

There are additional practical considerations which a potential plaintiff must not forget:

1.  Sophistication of the defamer(s)

It may be extremely difficult and/or expensive to identify a sophisticated defamer.  The production strategies in this article are ideal where the defamer has posted the defamatory message from their personal computer being used on their personal home network.  If the defamer has taken measures to either use an IP mask or to make all defamatory postings from other networks (ie. they have gone to Starbucks for all defamatory measures) then securing the registrant information will not get the plaintiff the information necessary to identify the defamers.  Securing such information may take further motions and/or investigations and may simply not be possible where the defamer has been extremely cautious.

2.  Cost and risks

Issuing a Statement of Claim, engaging in motions to identify an anonymous poster, and then following through on the claim will likely cost a plaintiff tens of thousands of dollars.  While a majority of costs would be recouped by the plaintiff at the end of the claim, between 10-40% will not.  Further, it will in all likelihood take well over a year to identify the defamers and secure judgment against same.  There is the risk that the plaintiff could bring a couple motions only to determine that the defamers cannot be identified and thus the plaintiff will be unable to continue his or her claim.  Lastly, there is the risk that everything goes according to plan, judgment is secured, but the defendant does not have the money to cover the award and costs awarded to the plaintiff.

Given the above, a potential plaintiff should consider the likelihood of the sophistication and potential identity of the defamers when considering whether it should start a claim.  An alternative to starting a claim is to combat the negative comments with positive ones.  For example, flooding the internet with positive references about a defamed individual or company may be a potential plaintiffs best chance to bury the negative effect of the defamatory comments.  Also consider that a lawsuit and related motions will only draw further attention to the comments and allegations which the plaintiff sees as defamatory.

 

Owen Bourns is a litigation lawyer in Ottawa, Ontario.  He may be reached at 613.566.2823 or at obourns@perlaw.ca.

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  2. […] If someone has been defamed online then the initial hurdle is always identifying who the online defamer was.  Some of those issues were touched on in a previous article “Defamation on the Internet”. […]