Written by Martin P.J. Kratz, QC
Anonymity on the Internet has encouraged some to feel they live in a culture that feels no responsibility for what might be posted and where there may be no consequences for what one posts. That is, however, not the case as seen in Carleton Condominium Corporation No. 282 v. Yahoo! Inc., 2017 ONSC 4385, Madam Justice Robin Ryan Bell applied well settled law to require the intermediary, Yahoo!, to reveal the identity of the poster of allegedly defamatory posts.
In this case, the anonymous poster used the name "Ian Fleming" for her or his posts. The real Ian Fleming is the author of the well-known James Bond series. However, this "Ian Fleming" was neither suave nor witty but rather makes very critical remarks about a condominium board alleging wrongdoing. Those messages were circulated by email to the owners and occupants of the condominium.
The Court recited the test for a Norwich order, noting it is a form of equitable relief requiring the third party, Yahoo! in this case, to disclose information regarding the identity of and contact information for the individual who has used the username, "Ian Fleming", and the specific email address. The Ontario Courts had previously identified the following factors govern the determination of whether to grant a Norwich order1:
- whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
- whether the applicant has established a relationship with the third party from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of;
- whether the third party is the only practicable source of the information available;
- whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure; and
- whether the interests of justice favour obtaining the disclosure.
The Court noted that as an extraordinary remedy that it should be exercised with caution. The Court assessed each of the above criteria.
In this case it was found that the applicant, the Condominium Corporation, had demonstrated a bona fide claim for defamation.
The Court noted that the Internet service provider (ISP), Yahoo!, provided the service used by "Ian Fleming" to send the anonymous emails to the owners and occupants of the condominium and while not implicated in the wrongful acts the ISP was involved in those acts in a manner more than as mere witnesses. The ISP was also the only practical source of the information.
The Court noted that the costs of compliance were anticipated to be nominal and noted that the applicant undertook to indemnify the ISP for reasonable costs of compliance.
In looking at the interests of justice the Court noted it was balancing the benefit of the disclosure to the applicant against the prejudice to the alleged wrongdoer of the release of the information. Madam Justice Bell found three reasons strongly favoured the issue of the Norwich order.
Firstly, the Court noted that section 7(3)(c) of the Personal Information Protection and Electronic Documents Act, SC 2000, c. 5 authorize disclosure without the consent of the individual where the disclosure is “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records.”
Secondly, the Court found that the Condominium Corporation has a duty to take all reasonable steps to comply with the applicable law and in this case found that making the application for the Norwich order "is a step, reasonably taken by the Condominium Corporation to ensure that its board members and employees are not subjected to statements which I have found are capable of being found to be defamatory".
Thirdly, the Court found that the disclosure is necessary to identify the originator of the emails. As all elements were shown the Norwich order was granted.
With the "unmasking" of the alleged wrongdoing a defamation claim may be likely follow up. It seems likely that the poster of defamatory comments may well be both "shaken and stirred" as an Ontario Court issued the Norwich order to require the ISP to unmask the anonymous poster's identity.
The important point is that Canadian courts provide well developed remedies to unmask anonymous wrongdoers so that they can face the consequences of their actions.
1 See GEA Group AG 2009 ONCA 619 at para. 51 and York University v. Bell Canada Enterprises, 2009 99 O.R. (3d) 695 (S.C.) at para. 13