Litigation

Court Enters Default Judgment Against Anonymous Defendants

Most people live a significant portion of their lives online. We engage in conversation, share information and even argue with people we’ve never met and whose names we don’t even know. The rise of business review sites such as Google and Yelp have raised the issue of anonymous commenters and the financial damage they can cause with negative or even defamatory comments posted to a website or social media network. While the damage caused to the business is real, there has been little that could be done about it without a name to attach to litigation. A recent Ontario decision has taken the next step towards holding anonymous commenters accountable in the province, as the first decision to order summary judgment against a number of anonymous defendants in a civil action for defamation.

Defamatory Comments on Internet Message Boards

The plaintiff, a publicly-traded pharmaceutical company, noticed that negative and defamatory comments began to appear on its page on a trading site known as Stockhouse.com. The posts came from a number of users. While the plaintiff was able to identify one commenter as a former employee, it was unable to identify the others, as the page enables users to post comments about the company associated with the page under pseudonyms so that they do not have to publish their identity. The plaintiff obtained a court order for Stockhouse.com to provide the identities of each of the posters, however, the company claimed it had technical difficulties that prevented it from providing this information. Instead, it provided the email accounts associated with each of the user names.

The company sent libel notices and requests for identification to each of the users by email. When it received no response, the company obtained an order for substituted service, granting it permission to serve each of the users with statements of claim via email and direct message. When the company did serve the claims, it received an error message for one indicating that the email address may no longer be in use. However, the remaining accounts remained active. After service, the company received a response from just one of the users.

Using UK Precedent to Find Against the Anonymous Defendants

While there was no direct precedent for finding against an anonymous defendant in Ontario, the court considered the 2019 UK decision of Cameron v. Liverpool Victoria Insurance Co. Ltd., in which the court held that as long as the form of service could reasonably be expected to make the defendant aware of the proceeding, the court had sufficient jurisdiction to make an order against them, no matter how they were identified.

The court in the case at hand held that if the users had created these accounts to make comments online, it was reasonable to expect that they would be in receipt of communications sent to them via those same accounts. The court proceeded to order judgment against each of the anonymous defendants in amounts ranging from $10,000 to $65,000. While this is a step forward for plaintiffs seeking to hold anonymous internet users accountable for commentary they make online, there still remains the issue of enforcing these judgments. This will likely continue to be a focus of civil litigation matters going forward, as online interactions continue to grow every day. There will likely be a push and pull between privacy rights and the rights of a person or business to enforce their rights against someone causing them legitimate damage online.

If you have questions about the litigation process with respect to a corporate or civil matter, contact GLG LLP in downtown Toronto. The firm’s litigation lawyers provide efficient and skilled trial advocacy for a range of legal issues. Call the firm at 416-272-7557 or contact them online to schedule a confidential consultation.