As modern technology changes, and the way that people communicate changes with it, the law must evolve to be able to respond to these new situations. A recent case, decided by the Honourable Mr. Justice F.L. Myers on January 21, 2020, is an excellent example of this.
In Theralase Technologies Inc. et. Al. v. Lanter et al., Plaintiffs sued for damages arising from allegedly defamatory comments made online at an internet chat room at www.stockhouse.com, in which the company and specific members of its management team were described, amongst other things, as unprofessional, unethical and incompetent. The unusual thing about this particular case was that the persons making these on-line comments used pseudonyms, to avoid disclosing their identities. The pseudonyms in question included “LAZERR00”, “PENNYOILKING”, “CRAZYTRADER12” and most imaginatively, “NASTYNASTA”. The Plaintiffs, before commencing their lawsuit, sought an obtained a Court Order compelling Stockhouse.com to disclose the actual identities of these users, but due to some technical glitches, Stockhouse.com was unable to retrieve this information. Stockhouse.com was, however, able to provide the Plaintiffs with email addresses for all of the defendants except “LAZER00”.
The Plaintiff, undeterred by this, commenced its lawsuit identifying each of the Defendants by their online user name and served the Statement of Claim, with leave of the Court, either by private message through the Stockhouse.com website or via the email address that Stockhouse.com had provided. None of these Defendants responded, and as a result, the Plaintiff noted each of them in default and attended before Myers J for default judgment. (NB, for those of you reading this who are not lawyers, what this means is that when none of these Defendants responded to the Statement of Claim, they were deemed to have admitted they did defame the Plaintiffs, thus leaving the only issue to be decided by the Court the level of compensation to which the Plaintiffs were entitled. Myers J. decided this based on submissions and written materials filed by Theralase’s lawyer, without the participation of any of the Defendants or their lawyers).
The first issue that Myers J. had to decide was whether he even had jurisdiction to grant a judgment against an unidentified Defendant. He noted that the Rules of Civil Procedure, which were originally drafted over a decade before most people even knew what the internet was, did not contain any provision allowing this to happen. However, the Rules of Civil Procedure do permit situations not expressly dealt with therein to be dealt with by analogy, to ensure a just and fair outcome. Myers J. also considered a previous case called Manson v. John Doe, which dealt with a similar claim against an anonymous blogger. In that case, the presiding judge stated:
“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, 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.”
Similarly, in an English case, called Cameron v. Liverpool Victoria Insurance Co. Ltd., the Court had to consider whether or not it could issue a judgment against an unidentified motorist, and concluded that if the unidentified Defendant was capable of being served in a manner reasonably likely to bring the claim to his or her attention, and had been served in this manner, it would be appropriate to grant judgment against them despite their actual name not being known. Myers J. agreed with the English court’s reasoning in Cameron, stating:
Provided that the form of service utilized can reasonably be expected to bring the proceedings to the attention of a specific, identifiable Defendant, the court has jurisdiction over that person however he or she may be identified. The test of reasonableness will be influenced by the circumstances of the case. Where, for example, people are hiding behind internet anonymity of make allegedly defamatory comments on a website, service through the website using the co-ordinates and identifiers that the users themselves provided to the website operator strikes me as reasonable and just. If notice does not reach the users, it is because they chose not to access the accounts that they provided to the website operator.”
On this basis, Myers J. concluded that as the Defendants, despite their real names, addresses and such like being unknown could be served through the emails provided by Stockhouse.com and/or their Stockhouse.com accounts, and judgment could be issued against their pseudonyms. It is important to note, however, that Myers J. expressly declined to comment upon how the Plaintiff would be able to collect any damages pursuant to a judgment issued against “NASTYNASTA”, “CRAZYTRADER12” and such like. The author suspects that it would be necessary for the Plaintiffs to carry out further investigation to identify the people behind these pseudonyms, and amend the judgment to include their names, for enforcement purposes.
Having concluded that he was in a position to issue a judgment against these Defendants, Myers J. then went on to consider factors influencing the amount of damages he ought to award. Again, he considered factors specific to the Internet as a technology, citing an Australian court decision where it was noted:
“The internet is essentially a decentralized, self-maintained telecommunications network. It is made up interlinking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term “cyberspace”. This is a word that recognizes that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained….”
Myers. J. also noted, in keeping with this paragraph, that communication via the Internet is “instantaneous, seamless, interactive, blunt, borderless and far-reaching…and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed”. Accordingly, when considering damages, Myers J. concluded that when one considers the size of the potential audience for these remarks, and the manner in which derogatory comments could potentially be disseminated across cyberspace, the compensation to which the injured party is entitled ought to be at the higher end of the scale. However, it was possible to see, through the Stockhouse.com website that each of these comments had “only” been read a few hundred times, or less, and that there was no “viral growth” of these posts before they were taken down.
Each one of the Defendants had specific damages awarded against them, based upon the specific nature of the posts they made. Ultimately, Myers J. awarded $15,000 in general damages in favour of Theralase, and $25,000 for each of the four officers and directors of the company who were expressly mentioned in these posts. $15,000 in aggravated damages were awarded against one specific Defendant, whose posts regarding two of the individual Plaintiffs were found to be particularly noxious.
This case serves as a cautionary tale. It may be tempting to some to make potentially inflammatory comments on social media, or on internet chat rooms. The fact that one is possibly anonymous, thanks to a username or pseudonym, may embolden “keyboard warriors” to say things that they might not say in person, or through another medium. However, what is quite clear is that the Courts in Ontario are changing with the times, and that there is an ever-growing body of jurisprudence dealing with defamation in cyberspace. Perhaps now more than ever, the old maxim “If you wouldn’t say it to your grandmother, don’t put in on the internet” is the best advice.
