The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

Ontario Superior Court Makes Defamation Judgments Against Anonymous Online Posters

In a recent decision , the Ontario Superior Court of Justice struck a blow for victims of defamatory internet posts who may have a good cause of action against anonymous authors but no easy means to identify them by name or serve them in the traditional manner.

In Theralase Technologies Inc. v. Lanter, the plaintiffs sued anonymous posters on a website called Stockhouse.com (“Stockhouse”) for publishing defamatory content about them, including accusations of dishonesty and criminal acts. The motion judge, Justice Myers, even described one post as “misogynistic” and “particularly disgusting”.

The plaintiffs first obtained a court order requiring Stockhouse to turn-over the identities of the posters. Due to a technical issue, the website was only able to provide email addresses for most of the defendants, but not their names.

The plaintiffs then obtained an order for substituted service, which allowed them to serve their statement of claim by email on the email addresses supplied by Stockhouse. Only one of the defendants responded. One email was returned as undeliverable and the remaining defendants did not respond.

When a defendant is duly served with a statement of claim and does not file a statement of defence within the allowed time, a plaintiff may note that defendant in default and move for default judgment. That is what happened in this case. The plaintiffs moved for default judgment against the defendants who were served by email but who did not respond.

The issue that the court had to address was whether it could make a judgment against unidentified individuals. Justice Myers reviewed the very few court decisions regarding judgments against unidentified defendants, including from the United Kingdom, and determined that the court’s ability to grant a judgment is based on whether the defendant was properly served with the claim. In other words, once a defendant has notice of a claim, whether or not they have been identified, they are subject to the orders of the court, including a judgment.

In his review of the jurisprudence, Justice Myers cited an earlier decision, Manson v John Doe, 2013 ONSC 628, which involved an anonymous post on a website owned by Google as follows:

[20] There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about a reputable member of the public and then hides behind the electronic curtain provided by the Internet. The Defendant confuses freedom of speech with freedom of defamation. There are, undoubtedly, legitimate anonymous Internet posts: persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The Defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none.

Having determined that he had jurisdiction to grant judgment against the unknown defendants, Justice Myers considered whether the plaintiffs were entitled to a default judgment and if so, for how much.

On a motion for default judgment, a defendant is deemed to admit all of the facts in the statement of claim. In this case, liability for defamation was deemed to have been admitted. In determining the amount of compensation, Justice Myers considered the type of statements, how they were written, the fact that they were on the internet, the fact that they were read at most a few hundred times, and that the posters had not taken any steps to retract the statements. He even considered whether the writing style could haven been described as “ranting”, and whether this made the statements more or less believable. He wrote:

Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed[1]

Justice Myers awarded the plaintiff between $10,000-35,000 from each defendant to each plaintiff they defamed for the defamatory statements.

Takeaways

For anyone who has read a newspaper or watched television over the last decade, it is apparent that anonymous internet posts and cyberbullying are a real problem that the legislature and courts have struggled to address.

Having obtained judgments against these anonymous defendants, the plaintiffs will still need to identify these defendants to be able to enforce these judgments, some of whom may claim to never have received the claim in the first place.

This decision confirms that where someone is defamed anonymously, and if they can convince a court that their method of serving that claim is likely to come to the attention of the anonymous defendant such that they are allowed substituted service, then they can potentially get a judgment without actually identifying that defendant.

[1] Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, at para 31

Karen Bernofsky
Affleck Greene McMurtry LLP

Karen Bernofsky

Karen Bernofsky is a strong advocate with a focus on commercial litigation and delivering cost-effective solutions. She advises and represents clients in a broad range of complex insurance matters, construction matters and commercial disputes, including breach of contract and invoice disputes. Karen is also a skilled negotiator with a proven track record in effective mediation advocacy. She has appeared before all levels of courts and administrative tribunals in Ontario as well as before the Federal Court of Canada.

Contributor's Archive

Contributor's Profile