Companies may also be the target of online defamation or corporate espionage.
In Ontario, a procedure exists for a corporate plaintiff faced with defamatory statements to compel an Internet Service Provider (ISP) to disclose the identities of anonymous web or email account holders using aliases or pseudonyms. In Irwin Toy Limited v. John Doe (2000), 12 C.P.C. (5th) 103,  O.T.C. 561 (Ont. S.C.J.), Justice Wilkins of the Ontario Superior Court of Justice established the test and outlined the procedure for bringing this type of motion. Wilkins J. had to determine the relevant criteria to order an ISP to identify a subscriber who had allegedly sent a defamatory message through the electronic mail to approximately 75 persons utilizing the services of the Internet. The plaintiffs were able to identify the internet alias of the sender, which was then tracked to an Internet protocol (IP) address, traced and ascertained to be a subscriber of iPrimus Canada, an internet service provider. iPrimus Canada declined to identify the subscriber unless it was ordered to do so by a court of law.
Wilkins, J. discussed the public policy rationale underpinning the concepts of privacy and confidentiality on the Internet:
“In keeping with the protocol or etiquette developed in the usage of the internet, some degree of privacy or confidentiality with respect to the identity of the internet protocol address of the originator of a message has significant safety value and is in keeping with what should be perceived as being good public policy. As far as I am aware, there is no duty or obligation upon the internet service provider to voluntarily disclose the identity of an internet protocol address, or to provide that information upon request.”
Accordingly, the court held that the appropriate test was that plaintiffs must demonstrate on a prima facie basis that the originator of the message in question has released, by electronic mailing, words which are capable of being construed by a properly charged jury as being defamatory. The court concluded that the plaintiffs had met this test and ordered iPrimus Canada to disclose the true identity of the person who sent e-mails containing Irwin Toy’s private and confidential files and alleged false information about its management.
Wilkins J. added that such disclosure should not be automatic upon the issuance of a statement of claim, otherwise, the anonymity of the internet could be shattered for the price of the issuance of a spurious statement of claim and the benefits obtained by the anonymity lost in inappropriate circumstances. He also indicated that requiring a plaintiff to commence a lawsuit against an ISP to obtain the identity of the real tortfeasor would be unjust and expensive since the law respecting an ISP’s liability for its customers’ actions is not clear.
In a more recent Ontario decision, Warman v. Wilkins-Fournier, Kershman, J. ordered the disclosure of all personal information, including name, email and Internet Protocol (IP) addresses of multiple anonymous posters in a defamation case. (see also, Diamante Development Corporation v. John Doe (April 17, 2002) Toronto 02-CV-227609 CM3 (Ont. S.C.J.) per Chapnik, J.;Ontario First Nations Limited Partnership v. John Doe (June 3, 2002), Toronto 02-CV-229617CM3 (Ont. S.C.J.); Canadian Blood Services v. John Doe (June 17, 2002), Ottawa 02-CV-20980 (Ont. S.C.J.) ).
The litigation strategy may be summarized in the following six (6) steps:
- Identification: Retain a forensic computer expert to help identify the ISP by retrieving the original IP address from the e-mail message headers of account information. An IP address is a numeric sequence address given to servers and users connected to the Internet.
- Prosecution: Commence an action against the unknown defendant(s) using the pseudonym (s) “John Doe#1”, “John Doe #2”, etc. setting out a cause of action such as defamation or breach of confidence, or if also suing the website or blog owner, add the unnamed defendants sequentially;
- Notification: Provide written notice to the ISP of the nature of the claim (eg. provide a copy of the Statement of Claim) and seek either consent or no opposition to the proposed motion.
- Data Retention: Request written confirmation that the ISP has preserved the electronic records, which identify the subscriber with the verified IP address to ensure records retention (and avoidance of automatic records destruction) in the intervening period.
- Interlocutory Motion: Bring a motion against the ISP under rules 30.10 and 31.10 of the Rules of Civil Procedure dealing with non-party discovery, or , a motion for a Norwich order for pre-action discovery (see my earlier blog post: Norwich orders: Ontario Court of Appeal restricts pre-action discovery in GEA Group AG v. Ventra Group Co.). The grounds for the motion and supporting affidavit by the forensic computer expert typically includes the following:
- Evidence demonstrating that the plaintiff has a prima facie case against “John Doe” in respect of the allegations made in the statement of claim, including a copy and details of the alleged defamatory e-emails, blog posts or online comments, or unauthorized confidential e-mail(s), the e-mail address list or account information and number of third party recipients;
- Specifics concerning the forensic computer expert’s verification process in connecting the internet alias to the IP address and ISP;
- A statement to the effect that unless and until the ISP identifies the “John Doe” defendant with the verified IP address, the plaintiff will not be in a position to serve their statement of claim or otherwise prosecute the action.
Antonin I. Pribetic