Cyber Libel Updates

Canadian Internet Defamation Rulings

Anonymous Defendants

Cases published to May 1, 2018

If the defamer has used a pseudonym or is otherwise anonymous, a potential libel plaintiff has certain legal options to identify the defamer, including the following:

  1. A lawsuit against a “John Doe” defendant and seek to obtain discovery of information from third parties who may have knowledge of the identity of “John Doe”; or
  2. A lawsuit in the nature of a “bill of discovery” against a named defendant, typically someone who may have information permitting the identification of the defamer, so that a subsequent lawsuit may be filed against the defamer (sometimes referred to as a “Norwich” application); or
  3. Exploit special rights of discovery under Court rules of practice (e.g. Nova Scotia) which provide for pre-action discovery.

See McConchie and Potts, Canadian Libel and Slander Actions, “Identification of Potential Defendants,” pages 726-730.

Click on a Case Name for full text (links off site).

2017 October 25
Houseman v RateMDs Inc., 2017 SKQB 321

The Saskatchewan Court of Queen’s Bench made a Norwich order, on application by the plaintiff dentist, requiring RateMDs Inc. to release specific information, including IP addresses that would allow the plaintiff to identify the person or persons who posted anonymous reviews on the RateMDs Inc. website. The Court noted that the plaintiff dentist had “provided evidence sufficient to raise a valid, bona fide and reasonable claim.  He has produced copies of the reviews, he has sworn that the identified statements are untrue, and he has described the negative effect of the statements on him and his practice.”  “[The dentist] has established that RateMDs Inc. is involved in the reviews, in that the reviews were posted on the website of RateMDs Inc.  RateMDs Inc. maintains that website for the purpose of enabling people to post reviews of medical professionals.”  The Court did not consider it appropriate to require the dentist or RateMDs Inc. to give notice of this application for disclosure to the anonymous poster.

2017 September 28
Malak v Hanna,  2017 BCSC 1739

The British Columbia Supreme Court held that the corporate and three individual defendants were jointly liable for the many defamatory websites, blogs, YouTube videos, emails and other internet publications targeting the individual and corporate plaintiffs.  Most of the defamatory publications involved an internet article (“The Uncovered Article”) which the Court characterized as a “hit piece” targeting the plaintiffs and which was “posted on a flotilla of domain names surrounding the corporate plaintiffs’ actual domain names or using [the individual plaintiff’s] name.”  The court held that pseudonyms “Jim Arthur” and “Mike Flagger” were used by the defendant Hanna in relation to defamatory publications, to the knowledge of the defendants Jackman, Paine and Valley Traffic Systems Inc.  Defences of qualified privilege, fair comment and justification were rejected and held that the defendants “shared the predominant purpose of destroying, diminishing or undermining” the reputation of the plaintiffs pursuant to a common design.

2017 July 18
Carleton Condominium Corp. No. 282 v Yahoo! Inc., 2017 ONSC 4385

The Ontario Superior Court of Justice granted a Norwich order requiring Yahoo! Inc. and Yahoo! Canada Inc. to disclose to the plaintiff information it claimed was necessary to obtain the identity of the author of allegedly defamatory emails sent to owners and occupants of the plaintiff condominium corporation.  The emails were sent by an individual using the pseudonym “Ian Fleming,” the author of the James Bond novels.  In granting the order, the court relied on s. 96(1) of the Courts of Justice Act, RSO 1990, c. C43 and GEA Group AG v Flex-N-Gate Corporation, 2009 ONCA 619 at paragraph 71.  The court noted that Yahoo! and Yahoo! Canada “are communication service companies who provide web-based email services.  Without Yahoo!’s email services, ‘Ian Fleming’ could not have written and sent the anonymous emails to the owners and occupants…”  Although the plaintiff “does not allege that [they] are implicated in or liable for the wrongful acts of the originator of the emails, they are involved in the wrongful acts and are more than mere witnesses.”  The Court in this case did not find it necessary to require that the originator of the emails be given notice of this application by Yahoo! or Yahoo! Canada.

2016 June 17
Olsen v Facebook Inc., 2016 NSSC 155

The Nova Scotia Supreme Court granted a “Norwich” order, on application by the plaintiff, requiring Facebook to provide identifying information with respect to two Facebook accounts operated under pseudonyms. The Court noted that the Ontario Court of Appeal, in 1654776 Ontario Limited v Stewart, 2013 ONCA 184, criticized Warman v Wilkins-Fournier, 2010 ONSC 2126, an Ontario Division Court decision which required a plaintiff to present a prima facie case of defamation to obtain a Norwich order. The Ontario Court of Appeal decision held that “[t]here is no requirement that the applicant show a prima facie case. The nature and apparent strength of the applicant’s potential action should be weighed together with other relevant factors.

The Nova Scotia Supreme Court held that whether a Norwich order is granted “will depend on the particular circumstances and necessitate a balancing of competing interests.” “I would expect that in many cases the application will be resolved by deciding whether the interests of justice favour the disclosure which involves a consideration of the strength of the plaintiff’s potential claim and the interests of privacy and freedom of expression.” In this case, the Court ordered that only two of three alleged anonymous posters be unmasked. The third poster, who was not unmasked, merely posted a cartoon which did not directly disparage the plaintiff in the same way the posts by the other two posters did. The cartoon, according to the Court, could raise issues of fair comment relating to the conduct of the affairs of a local government.

2015 October 13
Mann v Elphick, 2015 BCSC 1853

The British Columbia Supreme Court granted an application by the plaintiff for leave to use certain documents obtained in the discovery process in motor vehicle litigation to commence a separate lawsuit in the British Columbia Supreme Court for defamation against KB and unknown persons. In the discovery process, the plaintiff had been given copies of anonymous, defamatory emails to an insurance adjuster for Great West Life, which had in turn forwarded the defamatory information to the Insurance Corporation of British Columbia. The Court concluded that the plaintiff should be relieved from his implied undertaking to the Court to use discovery information solely for the purpose of the litigation in which it was disclosed to the plaintiff. The Court stated that the public interest favoured relief so the information could be used in the proposed defamation litigation; that “the defamer should not be permitted to hide behind the protection of an implied undertaking rule.

2015 March 10
King v Power, 2015 CanLII 11200 (NL SCTD)

The Newfoundland and Labrador Supreme Court, Trial Division – General Division, dismissed an application by the libel plaintiff for an Order compelling Facebook Inc. and Twitter Inc. to disclose information to identify the anonymous person who created allegedly defamatory postings and messages on two social media accounts. The plaintiffs, who had commenced this lawsuit against a named defendant, needed information from Facebook and Twitter to verify their suspicions. The defendant, on his examination for discovery, denied being the poster, and resisted the application on the basis, inter alia, that the order sought was a fishing application that jeopardizes the privacy interests of non-parties and the public at large; that the defendant should not be “used” in a court application designed to unveil the privacy of a non-party. Curiously, the Court concluded that the order sought by the plaintiff had “no apparent link to the current defamation action against the Defendant” and that “The information is not needed for the proper disposition of the current litigation.” The Court also held that even if there had been some evidence the information was relevant, disclosure could not be automatic where Canadian Charter of Rights and Freedoms values of privacy and free expression are engaged. “If the Plaintiffs in this present matter had named a John Doe defendant, and claimed damages for defamation against that unknown person, then I would have ordered disclosure of the IP addresses corresponding to the relevant postings. The IP addresses would be relevant to determine the identity of the “John Doe” and the four factors listed in Warman would favour disclosure.

2013 May 31
Burke v John Does #1 to #18, 2013 BCSC 964

The British Columbia Supreme Court authorized the plaintiff to serve his notice of civil claim on the anonymous John Doe defendants by the alternate method of sending a private notification to each defendant’s message board account advising them that they are named as a defendant in this defamation action and telling them how to access the notice of civil claim and a copy of the order permitting alternative service at a dedicated page on the website of the plaintiff’s lawyers.

2012 November 29
Phillips v Ontario Racquet Club, 2012 ONSC 6679

The Ontario Superior Court of Justice (Master), hearing a pre-trial application made by the defendant, refused to strike out allegations in the statement of claim concerning an “anonymous” email sent to Canadian tennis associations and to several people at the British Lawn Tennis Association. The Court held that because the plaintiff was uncertain which of the defendants were responsible for republishing those emails to the original and secondary recipients, he was permitted by the Ontario Rules of Court to allege, in the alternative, that the defendant J, or alternatively the defendant C, published the original email; and that the defendant M, or alternatively the defendant J was responsible for its republication to other recipients.

2011 November 7
Pierce v Canjex Publishing Ltd., 2011 BCSC 1503

The British Columbia Supreme Court ordered the defendant website to disclose internet protocol addresses, names and any other identifier information concerning a registered user “halcrow” who had posted a comment that did not relate to the plaintiff. The Court accepted that a strong inference could be drawn that the user who commented on the defendant’s “Stockwatch” website under the name “halcrow” after the website began limiting comments to paid subscribers was the same “halcrow” who earlier posted defamatory comments about the plaintiff. Previous efforts to identify halcrow met a dead end when the Internet Service Provider could not provide subscriber logs.

Whether or not the Ontario Superior Court decision in York University v Bell Canada Enterprises (2005), 99 O.R. (3d) 695 should be followed in BC did not matter. The BC Supreme Court was persuaded the petitioner Pierce had a prima facie case of defamation. The Court was satisfied the plaintiff should not be required to first resort to “unnecessary and potentially very costly methods such as hiring private investigators when the information may in fact be readily available from Canjex Publishing Ltd.

2011 August 3
Manson v John Doe No. 1, 2011 ONSC 4663

The Ontario Superior Court of Justice ordered the anonymous defendant JD1 to identity himself (or herself) and to provide his address and the names and addresses of the anonymous co-defendants. The Court held that anonymity “should not be uniformly expected or ensured merely because the Internet is used as the defamatory communication tool.” The Court applied the test defined by the Ontario Divisional Court in Warman v Fournier, 2010 ONSC 2126, which must be satisfied for an order compelling an identified defendant (such as a website operator) to provide identity information about anonymous posters. The Court also ordered JD1 to forthwith remove from the Internet the original blog and a mirror blog and prohibited any republication of the words complained of until completion of the trial.

2011 July 20
Morris v Johnson, 2011 ONSC 3996

The Ontario Superior Court of Justice dismissed an application by the plaintiff, a former mayor, for an order compelling named to defendants to identify the anonymous “John Doe” defendants, applying the test for such relief described by the Ontario Divisional Court in Warman v Fournier, 2010 ONSC 2126. The postings at issue were published on a political forum website during the run-up to a general election in October at which the plaintiff was defeated in her bid for re-election.

The Court held that the plaintiff failed to establish a prima facie case because she had failed to set forth the specific words complained of as being defamatory. “The jurisprudence clearly establishes that in actions of libel … the precise words complained of are material and should be set forth with as much particularly as possible in the pleading itself, ideally verbatim, or at a minimum, with sufficient particularly to allow the defendant to respond.” In addition, the plaintiff failed to address a failure to provide notice of the specific defamatory words within the limitation period prescribed by s. 5 of the Ontario Libel and Slander Act and had not demonstrated that she had taken reasonable steps to identify the anonymous defendants.

2011 May 30
Warman v Wilkins-Fournier, 2011 ONSC 3023

[See also below the 2010 May 3 decision of the Divisional Court]

The Ontario Superior Court of Justice ordered the Fournier defendants to disclose to the plaintiff all relevant documents relating to the true identities of two “John Doe” defendants, “conscience” and “HR-101,” including (i) email addresses and all personal information used and submitted to the Freedominion website to register their access accounts and/or profiles, and (ii) the internet protocol addresses used by those “John Doe” defendants when making the specific postings complained of in the plaintiff’s statement of claim.

Applying the test prescribed by the 2010 May 3 decision of the Divisional Court, the Judge concluded that the public interests favouring disclosure outweighed the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified.

In this case, the John Doe defendants did not have a reasonable expectation that their identities would remain anonymous. The terms of their membership in Freedominion included the following: “…Freedominion will not be responsible for any illegal content that a member posts. Your FC alias is no protection. You can be called to account for what you publish. Free Dominion will not protect you. “Over-the-top” posts about public figures that test legal limits are unwelcome. If you post libelous or defamatory material, you are on your own. We take no responsibility for problems posters may cause for themselves.” The Court held that opting to use pseudonyms reveals an intention to remain anonymous but does not create a reasonable expectation in that result. Having regard to the terms of use agreed to upon their registration for access to the Freedominion website, the defendants could reasonably contemplate that their identities may be disclosed if they publish postings that are prima facie defamatory.

The Court also rejected the submission by the John Doe defendants that given the vast amount of hyperbole and exaggeration online, a reasonable person would not tend to take the postings of “conscience” and “HR-101” seriously. “…[G]iven the all pervasive nature of the Internet and its capacity to replicate defamatory messages, I do not find this argument persuasive. Whether or not the use of rude terms is common, does not speak to whether the [impugned term in this case] would be capable of lowering the plaintiff’s reputation in the eyes of a reasonable person. … Given the low threshold set for establishing prima facie defamation, I find the plaintiff has met his burden …

2010 September 14
Latner v Doe, 2010 ONSC 4989

The Ontario Superior Court of Justice (Master) ordered that the plaintiff’s brother submit to an examination under oath as a non-party for the purpose of assisting the plaintiff to identify the defendant, John Doe, in relation to a website which described the plaintiff in unflattering terms and included a photograph of the plaintiff and his home. In previous proceedings, the plaintiff had obtained an order requiring both Google and Photobucket to release information to him in identifying John Doe. Both complied, resulting in the plaintiff obtaining the IP address from which John Doe made his postings. Subsequently, a further court order was obtained for the purpose of identifying the subscriber to the IP address, which the ISP identified as assigned to the plaintiff’s brother. The Court noted that non-party brother had been cross-examined on an affidavit sworn in another proceeding involving other family members and that when asked if he had created a blog about the plaintiff, denied doing so and denied even being aware of the blog. The Court held that the plaintiffs had satisfied the requirements for the order sought which were discussed in Irwin Toy v Doe, [2000] OTC 561. “The IP address from which the blog emanates is registered to [the non-party brother]. While he may not be able to state unequivocally who was responsible for this publication, he certainly is well placed to provide information as to who it could have been and to help sort this out. As his IP address was used, one would have thought he, too, would want to know how this could have happened without his authority or even his knowledge.”

2010 June 29
Doucette v Brunswick News, 2010 NBQB 233

In this Norwich application, the New Brunswick Court of Queen’s Bench ordered that the respondents Brunswick News, CanadaEast Interactive and CanadaEast.com produce all information regarding the identity of the person who posted allegedly defamatory comments on the “Letters to the Editor” section of the CanadaEast.com website under the name “Anonymous Anonymous” on February 18 and 19, 2010. The Court held, inter alia, that: (i) the information sought by the applicant was necessary to identify wrongdoers, (ii) the language used by “Anonymous Anonymous” was prima facie defamatory, (iii) the applicant had provided evidence sufficient to raise a valid, bona fide or reasonable claim, and (iv) that the interests of justice favoured disclosure.

2010 May 3
Warman v. Wilkins-Fournier, 2010 ONSC 2126

The Ontario Superior Court of Justice, Divisional Court, set aside an order of a judge in chambers which directed the defendants to provide IP addresses for allegedly defamatory postings made by John Doe defendants as well as the e-mail addresses with which they registered as users of an Internet message board and any associated data provided at the time of registration. The matter was sent back to the judge in Chambers for reconsideration on the basis of the following principles: Before deciding whether the make such an order, the Chambers judge should consider: (1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (2) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (3) whether the Respondent 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.

The Divisional Court described the intersection of the plaintiff’s interest in protecting reputation and the defence interests in protecting privacy and freedom of expression that weighed in favour of these principles:

“In this case, it is clear that both the right of freedom of expression, guaranteed by section 2(b) of the Charter, as well as privacy interests that are also recognized by the Charter, are engaged. … Privacy interests arise for consideration in the present case in favour of both the plaintiff and the John Doe defendants. As the Supreme Court ruled in Hill, the good reputation of an individual is intimately connected to his right to privacy, and thus the right to privacy of the plaintiff may be affected by the allegedly libelous postings. At the same time, the John Doe defendants who made the allegedly libelous postings arguably had a reasonable expectation of privacy, having expressly elected to remain anonymous when they did so …

In Irwin Toy Ltd., which arose in the context of a defamation action, Wilkins J. suggested at para. 11 that, in keeping with the protocol or etiquette developed in the usage of the internet, some degree of confidentiality regarding identifiers of the originator of a message, ‘has significant safety value and is in keeping with what should be perceived as being good public policy.’ His statement is consistent with an implicit understanding of citizens that, to some degree at least, their identities will be protected when they use the internet anonymously. In Cuttell at para. 27, the court also held that there was a reasonable expectation of privacy in a party’s subscriber information which linked the party’s identity to internet usage. “In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the elements of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.”

Finally … there may be circumstances in which it is appropriate that notice of a motion for disclosure be given to a John Doe defendant. The case law suggests that any such determination is to be made on a case-by-case basis, and we agree. In a defamation action, little would generally be added by such a step, because any defences that might be raised are not relevant to a determination as to whether a prima facie case has been made out. For such purpose, a plaintiff is required to establish only the elements of defamation within its control. However, in other cases a John Doe defendant may have compelling reasons for wishing to remain anonymous that are not immediately obvious, such as a risk to personal safety, and such grounds could not be put before the court absent notice.”

2010 April 19
Mosher v. Coast Publishing Ltd., 2010 NSSC 153

The Nova Scotia Supreme Court granted an order compelling Google to provide the plaintiff with the name, account status, secondary email, account services, account creation date and the Canadian I.P. address of anonymous internet posters who allegedly made defamatory comments. The Court held that the Nova Scotia Rules of Court were flexible enough to make such an order at the pre-commencement stage of the lawsuit. The Court also made an order compelling Coast Publishing to provide all information in its possession regarding the identity of the posters.

2009 September 9
York University v Bell Canada Enterprises, [2009] O.J. No. 3689

The Ontario Superior Court of Justice granted the plaintiff University a “Norwich order” requiring Bell Canada and Rogers Communications to disclose information necessary to obtain the identity of the anonymous author(s0 of allegedly defamatory emails and a web site posting. Bell and Rogers did not oppose the order, which required them to disclose the contact information of the customer(s) associated with certain IP addresses.

The plaintiff had previously obtained a “Norwich order” compelling Google Inc. to disclose information to aid in the identification of the author(s) of the communications. The information obtained from Google, namely the internet protocol address associated with an email address, led to the identification of Bell and Rogers and the relevant sources of the identity of the source of the emails and web posting.

This judgment contains a detailed discussion of the basis for the order and the circumstances under which the Court will make a “Norwich order” for the disclosure of identifying information.

2009 March 23
Warman v Wilkins-Fournier, [2009] O.J.No. 1305

The Ontario Superior Court ordered that the defendants, owners and operators of an Internet website, produce relevant documentary information either identifying, or that could assist the plaintiff in identifying eight John Doe defendants in this case. Under the Ontario Rules of Civil Procedure, the defendants must provide an Affidavit of Documents which includes a list of names and addresses of persons who might reasonably be expected to have knowledge of the matters in issue in the action. The Court rejected the defence argument that the plaintiffs were obligated to establish a prima facie case and that disclosure should not be automatic on issuance of a statement of claim, distinguishing Irwin Toy v Doe, [2000] O.J. No. 3318 on the basis it concerned the obligations of a non-party and the plaintiff required a court order to compel the non-party to produce documents. The obligation is on the defendants to disclose and the plaintiffs were not required to prove a prima facie case. The court also noted: “The Irwin Toy case was decided in 2002 and cites no other case law. At that time [the judge] may have simply felt that the issue was too novel.” The court also concluded that there is no reasonable expectation of privacy in one’s IP address information, relying in part on R v Wilson, [2009] O.J. No. 1067 (2 February, 2008).

2000 September 8
Irwin Toy Ltd. v Doe (2000), 12 C.P.C. (5th) 103 (Ont.S.C.)

The Ontario Superior Court of Justice made an order pursuant to the Ontario Rules of Court entitling the plaintiff to examine a non-party Internet service provider in order to determine the identity of the John Doe defendant.

See McConchie and Potts, Canadian Libel and Slander Actions, “Chapter Twenty-Seven, Identification of Potential Defendants“, page 727.

1998 June 24
Philip Services Corp. v John Doe aka Addicted2PHV, Court File No. 4582/98 (Ont)

The Ontario Superior Court of Justice made an order pursuant to the Ontario Rules of Court requiring a non-party Internet service provider to provide information to the plaintiff identifying persons who made allegedly defamatory postings to a website.