Background
I initially mentioned the lawsuit against Law Buzz last year when it was first launched. The case settled earlier this summer, with the plaintiff opting to move forward with her business. But a spin-off lawsuit was launched by Tycho Manson, one of the defendants in the original action, against anonymous posters commenting about him on the original case.
Pepall J. of the Ontario Superior Court heard a motion earlier this month in Manson v. Doe, dealing with a various forms of relief by the plaintiff, Manson:
- an order seeking validation of service by e-mail
- an injunction requiring the anonymous defendant to remove the websites from the Internet
- an order requiring the anonymous defendant to provide the name, address of the defendant and co-defendants
The defendant sent the allegedly defamatory statements about the plaintiff to his employer by e-mail. The plaintiff unsuccessfully brought an action and a motion against Google and Blogspot to remove the website, but Google successfully contacted the defendant by e-mail and received a reply.
Order Compelling ISP
An order was granted by Code J. on July 29, 2010, requiring Google to provide subscriber and transactional information. Code J. found that the case met the test in Irwin Toy Ltd. v. Doe, [2000] O.J. No. 3318 for compelling an Internet Service Provider to disclose the identity of a user:
- the moving party under R 31.10 must satisfy the court they have been unable to obtain the information from other persons
- the moving party should demonstrate that the person sought to be examined has information relevant to a material issue
- it would be unfair to require the moving party to attempt to proceed without the opportunity of identifying the true defendant
In Irwin Toy, Wilkins J. indicated that the true identity and appropriate address for service is arguably always something of importance that would require disclosure, but should not be automatic on issuance of Statement of Claim to avoid spurious claims,
11 In keeping with the protocol or etiquette developed in the usage of the internet, some degree of privacy or confidentiality with respect to the identity of the internet protocol address of the originator of a message has significant safety value and is in keeping with what should be perceived as being good public policy. As far as I am aware, there is no duty or obligation upon the internet service provider to voluntarily disclose the identity of an internet protocol address, or to provide that information upon request…
19 The law in Ontario respecting the liability of an internet service provider for the actions of its customer is not clear. 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.
The information on this motion revealed the postings were made from the University of Toronto wireless network and public wireless at coffee stores. The plaintiff then attempted to compel Google to reveal forwarding e-mail addresses to identify the defendants, but Google interpreted Code J.'s order as very broad and not requiring the production of this information.
The defendants then moved the site, and the allegedly defamatory statements, to a mirror site.
Order Validating Service
The defendant responded to the motion earlier this month indicating that they could not open the file attachments and suggested they were situated in the U.S. But because no attempts were made by the defendant to obtain the full motion record, and nobody appeared on their behalf at the motion, Pepall J. concluded the defendant was deliberately evading service. Rule 16.08 states,
VALIDATING SERVICE
16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,
(a) the document came to the notice of the person to be served; or
(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.
[emphasis added]
Because the defendant used the e-mail address to communicate with both the plaintiff's employer and Google, and responded to the delivery of the motion materials, the defendant had clear notice of the materials. The creation of the mirror site and supporting materials led Pepall J. to conclude that the defendants were situated in Ontario and were avoiding identification, and consequently validation of service was granted.
Injunction to Remove Offending Materials
The plaintiff demonstrated the serious question threshold and the irreparable harm requirements of the interlocutory injunction test in RJR-MacDonald Inc. v. Canada (Attorney General). Pepall J. cited Benjamin v. Toronto-Dominion Bank to demonstrate the irreparable harm of prima facie defamatory statements for the plaintiff (a lawyer),
[46] …as Publilius Syrus remarked in the First Century B.C.E., “A good reputation is more valuable than money.” For a lawyer, young or old, the loss of a good reputation is not reparable by money. In a sense, a lawyer’s reputation is his or her claim to a share of the marketplace for legal services…
But because of the highly intrusive nature of an interlocutory mandatory injunction, the moving party must "show a strong and clear case with a high degree of assurance" that it would be rightly granted. Pepall J. amended the injunction for the plaintiff to provide an undertaking as to damages, and granted the injunction on the basis that it would be relatively easy for the defendant to remove the materials and not republish it if they were in charge of the website.
Production of Identity of Defendants
Pepall J. applied the test in Warman v. Fournier et al to compel a defendant in a defamation action to produce identity information:
- whether the alleged wrongdoer have a reasonable expectation of anonymity
- a prima facie case against the alleged wrongdoer, and that the plaintiff is acting in good faith
- reasonable steps taken by the plaintiff to unsuccessfully identify the anonymous party
- public interest balancing disclosure with legitimate freedom of expression and right to privacy
She held that unless a competing value such as the freedom of expression in a political context in Morris v. Johnson et al was present, the defendants could not have a reasonable expectation of anonymity from defamation and the public interest favoured disclosure,
[14] … In my view, anonymity should not be uniformly expected or ensured simply because the Internet is used as the defamatory communication tool…
[17] …the defendants can have no reasonable expectation of the protection of their privacy or right to privacy when they are using the Internet to intentionally defame Mr. Manson in his private life and profession. As the Divisional Court noted in Warman “there is no compelling public interest in allowing someone to libel and destroy the reputation of another while hiding behind a cloak of secrecy.”
In finding that all remaining parts of the test in Warnman were met, she granted the order for disclosure.
Addendum
An addendum to the decision highlighted a different test for an interlocutory defamation injunction than in RJR, as in Canada (Human Rights Commission) v. Canadian Liberty Net and Henderson v. Pearlman, but concluded that the result would be the same.
Given the irony of a defendant in an action largely initiated due to allegedly defamatory statements made online initiating his own action for a similar basis, this case warrants further attention, especially once the defendants in the new action are identified. The proceedings fortunately provide greater clarity for counsel in dealing with anonymous posters of defamatory material online, and some of the mechanisms that can be used to address them.
