Fighting anonymous defamation
When Tim Berners-Lee invented the World Wide Web in 1989, few could have foreseen the internet's explosive growth. By 2017, it was estimated that half of the world's population was on the internet. The smartphone further opened access to the web, and the World Advertising Research Center estimates that almost three-quarters of the global population will be online in less than five years.
Social media usage is one of the most popular online activities. Anonymous posters can spread falsehoods that can smear a person's reputation. And because the internet's reach is so vast, the damage can be overwhelming. Defending yourself against an invisible enemy can be a challenge.
Under Canadian law, defamation is a “matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published. A defamatory libel may be expressed directly or by insinuation or irony.”
While courts have been known to award modest damages, there have been exceptions. In Rook v Halcrow, the plaintiff was awarded more than $230,000 after the British Columbia Supreme Court found “the internet can be used as an exceedingly effective tool to harm reputations.”
The Law Commission of Ontario noted earlier this year that “Ontario courts and, indeed, courts throughout the world, have been gradually adapting defamation law principles to contemporary circumstances.”
In its report, Defamation Law in the Internet Age, the commission found the net has “created new problems in the multi-national reach of defamation law. The very nature of the internet transcends geographic boundaries. This creates significant practical challenges for any single province or country attempting to regulate defamatory online speech, assert jurisdiction over defamation law claims and enforce its laws and court judgments.”
In the past, holding anonymous online posters accountable for defamation was exceedingly difficult. However, an Ontario court decision that ordered 12 anonymous online posters to pay thousands of dollars in damages for defamatory statements was seen as a positive step in the battle against those hiding in the internet shadows.
The Globe and Mail reported that defamatory comments were posted on an investor-oriented message forum directed at a publicly traded pharmaceutical company and its two principals, criticizing them personally and professionally. Even though the website administrator was unable to provide the real identities of the posters, it was able to give the plaintiffs email addresses, which allowed them to serve the lawsuit.
In his ruling earlier this year, Ontario Court of Justice Frederick Myers awarded general damages ranging from $7,500 to $35,000 against each of the 12 and ordered them to pay $60,000 in legal costs.
“If people want to make hurtful statements about others and then try to hide from the responsibility to prove the truth or other justification for doing so, then … their cowardice is reprehensible and, in my view, they should bear costs on a substantial indemnity basis,” Myers wrote.
The issue of accountability
While a finding against anonymous posters is seen as a positive development, some say such rulings don’t go far enough. Holding a website administrator liable is the most obvious and effective way to deter anonymous defamation, critics say.
Australian courts take such an approach, consistently ruling that if a website operator has knowledge of defamatory content on their site and fails to remove it, they become secondary publishers and share in the liability. In one such case, an Australian court ordered Google to identify the person who anonymously posted a bad review of a dentist. The dentist’s lawyer called the case “groundbreaking.”
"If you're out there trying to hide by anonymity … I think the court system's catching up now and there are ways and means of obtaining that information," Mark Stanarevic told the Australian Broadcasting Corporation.
The problem with not holding the operator accountable is that it can be difficult to get an anonymous person to take down an offending post as well as uncovering the poster’s true identity.
Identifying the anonymous poster
Anonymous internet attacks are not limited to defamation and can come in many forms, including:
- Disseminating private information
- False negative reviews
- Impersonating someone online
While malicious statements can be disseminated on the internet in the cloak of anonymity, those offended can initiate a John Doe lawsuit, so named because the name John Doe is substituted for the unknown defendant's name. This allows a lawsuit to be launched while working to uncover the defendant’s true identity. This can be achieved if any of the following information is known:
- Email or Internet Service Provider (ISP)
- Internet Protocol (IP) address
- Website host provider
- Email provider
Uncovering the perpetrator is not always an easy task. 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.
What to do if you are a victim of an anonymous online defamation
Once false online statements are out in cyberspace they can be read by countless people and can have a lasting and harmful effect on your reputation along with your law practice. The Association of Corporate Counsel recommends taking the following steps:
Preserve/save the postings
- Take screenshots of the posting and send evidence letters to the ISP or host where the posts appeared.
- Ask the ISP or host to remove the postings. While not always receptive many websites have content standards and will remove postings that are clearly false or malicious.
Write a rebuttal
- Refute the allegations through an immediate rebuttal to ensure clients know you deny the falsehoods.
- Determine if the postings are actionable as defamation
- If information is defamatory, file a John Doe lawsuit.
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