Online Defamation: What if the Author Can’t Be Identified?

 Written by litigator and mediator Irvin Schein and originally published at irvinschein.com.

The recent case of Carleton Condominium Corporation No. 282 v. Yahoo! Inc. and Yahoo! Canada Co. provides useful guidance on how a potential Plaintiff in a defamation case can identify the author of a defamatory statement made online.

This case involved an individual, using a false name, sending a series of emails from an email address which did not provide a clue as to the author’s identity.  The emails were sent to residents of the condominium building, following the resignation of the condominium corporation’s superintendent, and stated that the members of the board of directors had been harassing the superintendent and deliberately ignoring a variety of problems.  The emails also accused the board members of receiving kickbacks and generally mishandling problems.

The President of the board of directors emailed this individual asking him to identify himself.  The author refused to do so.

The emails were sent using a Yahoo! email address.  The condominium corporation brought an application to the Court for what is known as a Norwich order.  A Norwich order is an order requiring a third party to a potential action to disclose information that would otherwise be confidential.  The condominium corporation asked that Yahoo! be ordered to disclose the identity of the author of the emails.

The Court observed that the following factors apply to an application for a Norwich order:

• does the Applicant have evidence of a valid claim;
• does it appear that the third party is somehow involved in the acts complained of;
• is the third party the only practical source of the information available;
• can the third party be indemnified for any costs to which the third party may be exposed as a result of the disclosure; and
• do the interests of justice favour obtaining the disclosure?

The Court of Appeal has made it clear that a Norwich order is a discretionary remedy.  Given that it is intrusive and extraordinary, it is to be exercised with caution.  An Applicant for such an order must show that the information sought is required to permit a perspective lawsuit to proceed although it is not necessary for any Applicant to make a firm commitment to actually start the action.

In this case, the Court was satisfied that the condominium corporation had an apparently valid claim for damages for defamation.  Yahoo! Inc. and Yahoo! Canada Co. were involved in the alleged wrongful acts simply by virtue of the fact that they are communication service companies that had provided the web based email services.  Clearly they were the only practicable sources of the information, the costs of compliance with the Norwich order would be nominal, and the interests of justice strongly favoured the disclosure.

Accordingly, the order was granted and Yahoo! and Yahoo! Canada were ordered to disclose their information regarding the identity and contact information of the individual using the fictitious user name and email address as well as the internet protocol address (IP address) associated with them.

Individuals making defamatory statements through email or on social media may feel secure in hiding behind fictitious names.  This case is an important reminder that, as has been said in other contexts, you can run but you can’t hide.