By: Sarvenaz Ghattan
Online anonymity has opened the door to the spread of falsehood and online defamation that can damage one’s reputation. Unfortunately, these internet attacks are not limited to defamation and can come in many different forms such as cyber stalking, impersonating someone else or cyber smearing to name a few. The problem is, however, to hold someone accountable, you have to know who they are and how and where to serve them.
What should one do in anonymous cases?
1. Recognize the defamation
Defamation is “harming another person’s reputation by making a false written or oral statement about that person to a third party”[1]. The statement is defamatory if it is likely to lower the reputation of the person in the eye of a “reasonable” person.
2. Hire an experienced internet defamation lawyer
Lawsuits with unknown defendants (“John Doe Lawsuits”) can be complicated. It important that you find an experienced defamation lawyer who knows how to properly draft John/Jane Doe lawsuit in accordance with the applicable jurisdiction.
3. Preserve/Save the Postings
The first step suggested by the Association of Corporate Counsel is to preserve and save the posts. You can do this by taking screenshots of the posts, send letters to the ISP or host where the statements were posted and ask the ISP to remove the posts.
4. Commence a Claim
With the help of your experienced lawyer, commence a John Doe. The claim has to include all information known at the time and must show that the legal elements of defamation has been satisfied.
The rule is to serve the claim to the defendant personally. But in the case of a John Doe defendant, the defamed will not be able to do that unless they find the name of the defendant. This can be done if any of the following is known:
- Email or internet service provider (ISP)
- Internet Protocol (IP) address
- Website host provider
- Emailer provider
- IP Mask and VPN provider
The challenge however is that obtaining this information may not be easy. Under the Personal Information Protection and Electronic Documents Act, an ISP is not permitted to disclose the personal information of a subscriber without their knowledge and consent, except in certain specified circumstances, including by court order or if the information relates to a suspected breach of law.
The best option is to request a court order requiring disclosure from the ISP.
5. Order to Disclose
Under Rule 30.10 of the Ontario Civil Procedure, the court can order a non-party, in this case the ISP, to disclose relevant information where it would be unfair to require the plaintiff to proceed to trial without this information.
When giving such order, the Ontario courts have previously taken the following factors into consideration:
- Whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the circumstances;
- Whether the plaintiff has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
- Whether the plaintiff has taken reasonable steps to identify the anonymous party and had been unable to do so; and
- Whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of persons sought to be identified if the disclosure is ordered.[2]
6. Remedy
The amount of damages rewarded by the court for such cases can vary depending on the effect of the defamatory statements on the person’s reputation. It has previously ranged from modest damages to more than $230,000 in Rook v Halrow where the BC Supreme Court held that the “internet can be used as an exceedingly effective tool to harm reputations.”
Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.
[1] Defamation, libel and slander: What are my rights to free expression? CJFE. (n.d.). Retrieved February 23, 2022, from https://www.cjfe.org/defamation_libel_and_slander_what_are_my_rights_to_free_expression
[2] Defamation on the internet/the anonymous Defamer. Perley-Robertson, Hill & McDougall LLP/s.r.l. (2019, September 18). Retrieved February 23, 2022, from https://perlaw.ca/2011/07/22/defamation-on-the-internetthe-anonymous-defamer/