Pseudonymous posters given adequate notice of the claim via email and via website messages
The Ontario Superior Court of Justice has granted summary judgement in a defamation case against a number of unnamed, pseudonymous authors of internet postings. In Theralase Technologies Inc. v. Lanter, the plaintiffs were a pharmaceutical company and two of its senior employees. They alleged that a number of postings made on an online discussion website, Stockhouse.com, were defamatory of them and are summarized by the judge:
[31] Generalizing for introductory purposes, the postings assert that Theralase management are untruthful and unprofessional, the corporation is operating unlawfully and improperly from the investors’ perspectives, and the personal plaintiffs are unprofessional, incompetent managers who have committed criminal acts. Ms. Hachey is also the subject of at least one misogynistic post that is particularly disgusting.
The postings were made by ten different accounts. Prior to commencing the action, the defendants were able to obtain an order requiring Stockhouse to provide information about the individuals behind the pseudonyms. Stockhouse was able to provide email addresses for all but one of them, but said technical problems prevented them from providing further information. The plaintiffs then sent libel notices and requests for identification to each of the email addresses and obtained an order permitting service of the plaintiffs’ claim by email and private message on the Stockhouse platform. A number of the email addresses generated error messages, suggesting the accounts were no longer in operation, and one of the defendants did respond and was identified. The plaintiffs then brought a motion for default judgement against the still unidentified defendants.
The court was then required to consider whether it could grant summary judgement against a currently unidentified person. The caselaw on the point is scant as only one Ontario precedent could be found:
[13] In Manson v John Doe, 2013 ONSC 628, 114 OR (3d) 592, the defendant was an anonymous blogger on a website owned by Google. Google advised the plaintiff that it had sent the plaintiff’s motion seeking the identity of the defendant to the defendant by email and that the defendant had responded indicating that he was seeking legal counsel. Ultimately the plaintiff was provided with the defendant’s email address although it could not determine his name.
[14] Goldstein J. wrote:
[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.
[15] In the result, Goldstein J. granted judgment against the defendant who was identified only by a user name or pseudonym. There is no discussion in the case report as to whether the lack of the defendant’s actual name was considered to be an impediment to the court’s jurisdiction.
The court then reviewed caselaw from the United Kingdom, another jurisdiction in which most judgements are made in personam. The principal authority for permitting a default judgement against an unnamed defendant was found in Cameron v. Liverpool Victoria Insurance Co Ltd., [2019] UKSC 6, [2019] RTR 15, a UK supreme court decision that held that such an order can issue in certain cases:
[22] In Cameron, the Supreme Court found that it is not enough to refer to a defendant by reference to a past act, such as a hit-and-run accident, because the prior act provided no basis to identify the particular person who is the defendant. However, the court concluded that where a form of service is utilized that can reasonably be expected to bring the proceedings to the attention of the defendant, there was no reason in principle to limit the court’s ability to grant judgment against the unidentified defendant.
[23] I agree with the reasoning in Cameron and adopt the Supreme Court’s framework. 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 to make allegedly defamatory comments on a website, service through the website using the coordinates and the identifiers that the users themselves provided to the website operator strikes me as both reasonable and just. If notice does not reach the users, it is because they choose not to access the accounts from which they made their comments or the email addresses that they provided to the website operator. Where there is evidence that a person is actively evading service, such as by shutting down a previously active email address or website account after learning that an action exists, correspondingly less certainty of service may be required as long as it remains conceptually possible. See also: Cameron at para. 25.
The court reviewed the manner in which the plaintiffs’ claim was communicated to the defendants, both through email and through the messaging function of Stockhouse.com. Such communication was likely to bring the claim to the attention of the defendants and they failed to respond or file a defence.
The judge acknowledged that there will likely be significant challenges in enforcing the default judgement, but it did not influence the determination of whether default judgement could be obtained. In the result, the court entered summary judgement against the unnamed defendants, assessed damages against each of them and issued an order for costs on a substantial indemnity basis.
