Update on SLAPPs

By: Contributor · October 18, 2011 · Filed Under Civil Procedure · Comment 

In response to last week’s post on the report of the Advisory Panel to the Attorney General on strategic litigation against public participation (SLAPP), one relevant case was brought to my attention. On July 20, the Superior Court of Justice released its newsworthy decision in Morris v. Johnson, 2011 ONSC 3996 (CanLII). As many of you may recall, the ire of many bloggers was incited by the plaintiff’s motion for an order requiring bloggers to disclose the identity information of anonymous defendants who had allegedly defamed her through their comments on a blog. The plaintiff was a former mayor of Aurora and the allegedly defamatory comments were made in relation to her re-election campaign After applying the three factors established in Warman v. Fournier, 2010 ONSC 2126 (CanLII), Brown J. ultimately denied this motion.

For those of you that have not read the decision, the motion reflected many of the qualities of a SLAPP.[1] As indicated in the decision, the plaintiff’s motion was without substantial merit. For example, the plaintiff did not set out the allegedly defamatory words in her statement of claim, despite being an element of the tort. The court noted that she could have obtained the verbatim defamatory statements through the impugned blog. The claim did not appear to have been brought in good faith since the identities of the anonymous bloggers may have been revealed during documentary discovery or examination for discovery yet the plaintiff did not employ those procedural steps. Like many SLAPPs, the claim was brought against individuals exercising their right to freedom of speech in relation to a political event. Notwithstanding the plaintiff’s failure in the courtroom, the SLAPP has achieved its ulterior purpose: the chilling effect on free speech by bloggers who, despite the court’s denial of the motion, may be hesitant to publicize their opinions in fear of being sued. Even after the determination of this motion, its SLAPP-like effect is ongoing with the plaintiff’s application for leave to appeal at the Ontario Court of Appeal, which is anticipated to be heard next week. Read more

Renewing the Debate on Anti-SLAPP Legislation in Ontario

By: Contributor · October 6, 2011 · Filed Under Civil Procedure, Environmental Law, Torts · 1 Comment 

October 28th of this month will mark the one year anniversary of the publication of the Anti-SLAPP Panel’s Report to the Attorney General on anti-SLAPP legislation. Since then, the chatter on the issue of strategic litigation against public participation (SLAPP) appears to have died down. With the intent of renewing the debate on this issue, the following article, although long overdue, will summarize and discuss the Advisory Panel’s report.  It is hoped that the new provincial government will address the issue of SLAPPs during its four year term.

Introduction

In June 2010 the Attorney General of Ontario created the Advisory Panel to advise him on potential anti-SLAPP legislation. Arguably, this move was in response to what has been described as the “most down-and-dirty development fight in Ontario’s recent memory”.[1] After gaining approval from the Ontario Municipal Board (OMB) to build a resort and marina on the shores of Big Bay Point, a developer made a costs application for $3.2 million against a community group and its lawyers that had opposed its plans.[2] Although the OMB declined to award the developer its costs, the latter did not come away from the proceedings empty-handed. The notion of suing the lawyers of defendants to a SLAPP lawsuit sent shockwaves throughout the Ontario legal community. While the Advisory Panel was still in the process of developing its recommendations the insurer for Ontario lawyers warned its members that representing public interest groups was risky because those groups may become the target of a SLAPP lawsuit that involves great unanticipated cost consequences.[3]

Having reached that critical point, it was not a great surprise that the final report released by Advisory Panel to the public in December 2010 recommended that anti-SLAPP legislation should be created. Instead of endorsing the creation of new statutory rights to public participation and to “SLAPPback,” the Advisory Panel opted for a procedure-based approach for filtering out SLAPP lawsuits and made recommendations on the different types of provisions that should be included in the legislation. Read more

How not to sue Dragons’ Den

By: Pulat Yunusov · August 31, 2011 · Filed Under Civil Procedure, Media Law · 2 Comments 

Every time I see the Dragons belittle a sweating contestant from their raised TV studio platform that reminds of Olympus I catch a breath. It’s not Jerry Springer but what if one of the scorned pitchers loses it and throws his heavy business idea right at a Dragon’s head? Thankfully, I’ve never seen such a sight, but at least one unlucky show participant did sue the CBC for defamation after a particularly nasty broadcast. His litigation imploded at the summary judgment motion teaching us something about both the defamation law and the inner workings the famous TV show.

In his judgment, Justice Lofchik summarized well what happened between the plaintiff, Mr. Turmel, and the CBC. A Dragons’ Den producer recruited Turmel for his public speaking skills. No business idea was on the table at that time. Turmel signed a bulletproof consent and release. Then his unsuccessful pitch for “a local currency system for Brantford, Ontario” was taped on May 31, 2009. Dragons showed no mercy. Nine months later, the CBC broadcast Mr. Turmel’s pitch in a one-minute version. A week later, he sued the CBC for defamation.

The CBC brought a summary judgment motion. The rule for summary judgment is that “there is no genuine issue requiring a trial with respect to a claim or defence.” Summary judgment is serious because it deprives one or more parties to a lawsuit of a trial. But if there is no doubt about the outcome of a trial, the court should grant summary judgment to save everyone’s time and money.

The first issue at the motion was Mr. Turmel’s failure to notify the CBC of the alleged defamation in writing within six weeks of seeing the broadcast. Ontario’s Libel and Slander Act bars any claim for “libel in a newspaper or in a broadcast” if the plaintiff didn’t do that. Even serving a statement of claim a week after the broadcast didn’t help Mr. Turmel. The purpose of the written notice is to give the alleged defamer a chance to apologize and correct the record. The courts have held that you cannot expect a defendant to have such an opportunity once the litigation took off. If Mr. Turmel’s claim was for defamation, his ignorance of the (rather arcane) law killed his case.

The second issue was Mr. Turmel’s argument that his case was not only for defamation but also for breach of contract. If he was right, the Libel and Slander Act didn’t bar at least some of his claim. He was wrong. The judge held that even though “one might also glean the suggestion of a claim for breach of contract,” Mr. Turmel signed a rock-solid consent and release that was the whole contract between him and the CBC. Mr. Turmel wasn’t a vulnerable party deserving special treatment, and he could have consulted a lawyer when he signed the deal. The agreement was that the CBC could pretty much show or not show anything taped in exchange for giving him a chance to pitch to the Dragons.

So a procedural misstep in the defamation claim and a failure to plead another real cause of action caused Mr. Turmel to lose this summary judgment motion. Consulting a defamation lawyer could certainly have helped him, but who knows, maybe Mr. Turmel will launch a second salvo in his war with the CBC by pleading another cause of action. But which one?

Pulat Yunusov is a Toronto litigation lawyer.

 


(Post sponsored by AdviceScene)

 

Julian Assange: Why the world needs WikiLeaks

By: Soroush Seifi · December 11, 2010 · Filed Under Civil Procedure, Civil Rights, Constitutional Law, Criminal Law, Diversity in Law, Privacy, Privacy Law, Uncategorized · Comment 

For video click here

Excerpts from Open Letter to the Head of Judiciary: the Islamic Republic of Iran re the imprisonment of 7 Iranian Baha’is on baseless and unproved charges and other human rights violations of followers of Iran’s largest religious minority

By: Milad Haghani · December 10, 2010 · Filed Under Civil Procedure, Civil Rights, International Law · 1 Comment 

7 December 2010

BAHÁ’Í

INTERNATIONAL

COMMUNITY

UnitedNationsOffice

866UnitedNationsPlaza, Suite120, NewYork, NY10017USA

Telephone: 212-803-2500, Fax: 212-803-2566, Email: uno-nyc@bic.org

Ayatollah Mohammad Sadeq Larijani

Head of the Judiciary

Islamic Republic of Iran

Your Honor,

You are undoubtedly aware of the outcome of the trial and the subsequent appeal of Mrs. Fariba Kamalabadi, Mr. Jamaloddin Khanjani, Mr. Afif Naimi, Mr. Saeid Rezaie, Mrs. Mahvash Sabet, Mr. Behrouz Tavakkoli, and Mr. Vahid Tizfahm—the seven individuals who before their arrest were responsible, as the members of the group known as the Yaran, for administering the social and spiritual affairs of the Bahá’í community in Iran…

Alongside their professional pursuits and family duties, they have rendered, on a purely voluntary basis, distinguished service to the people of that land, as, for example, in the advancement of women, in the promotion of literacy among the country’s general population, and in the provision of the means of education for the thousands of Bahá’í youth who have been denied admission to Iranian universities since the inception of the Islamic Revolution.

Read more

Omar Khadr’s Lawyer Dennis Edney Speech at FNC

By: Contributor · November 6, 2010 · Filed Under Civil Procedure, International Law · Comment 

Omar Khadr’s Lawyer Dennis Edney Speech at FNC from Ezra Winton on Vimeo.

Conrad Black and Libel Tourism

By: Omar Ha-Redeye · October 4, 2010 · Filed Under Civil Procedure, International Law, Media Law, Technology · 2 Comments 

David Canton has a column in this week’s London Free Press, where he discusses the Conrad Black case:

The case deals with Internet defamation and how to determine where to sue for it. As with traditional defamation, a party alleging Internet defamation must demonstrate they suffered damages in Ontario and also that they have a significant connection to Ontario. Where Internet defamation differs from traditional defamation is that the alleged victim must prove the statements in question targeted Ontario.

In Black v Breedan, Black brought an action for libel against directors, advisers and a vice-president of Hollinger International for statements posted on the Hollinger website. Black argued his reputation was damaged in Ontario as a result of these defamatory statements that had been reproduced in a number of prominent Canadian newspapers, such as the Globe and Mail and the National Post.

Black v Breedan is noteworthy because of the online aspect of the alleged defamation. Because anything posted on the Internet can be seen anywhere in the world, it has led to “libel tourism” – where someone who thinks they have been defamed will try to sue in whatever jurisdiction they might be most successful in, and get the highest damage award.

Black v Breedan tells us that – at least in Ontario – libel tourists are not welcome.

The case is interesting to me because it’s one of the first looking at the reformulated real and substantial connection test in Van Breda v. Village Resorts Limited for libel cases over the Internet.

The motion judge found most of the Muscutt factors favoured Black. On appeal, the Defendants submitted that the judge erred in looking at the connection of Black to Ontario, instead of the connections of the claim to the province.

The alternative positions of the two parties are best set out in the following paragraphs:

[35]     The defendants submit that treating the lex loci delicti as the place in which allegedly defamatory statements were accessed is inappropriate in the context of Internet libel. An approach that looks to where the statements were accessed, they argue, is contrary to the principles of order and fairness, leads to libel tourism and the prospect of unlimited liability and has a chilling effect on freedom of speech.

[36]     The defendants advocate a different approach to a claim for libel originating on the Internet. They suggest that the focus of the analysis of where the tort of Internet libel is committed should be on whether the defendant targeted the statements to the forum rather than where they were downloaded and read.

The Ontario Court of Appeal upheld the presumption of a real and substantial connection under Rule 17.02(g), even though the Van Breda test was not applied, and held that the Defendants did target their statements to Ontario based on press release contact info for local media. Consequently, there was a real and substantial connection between both Black and the Defendants, even if they were in a different jurisdiction.

In assessing fairness, the court noted that even though there might be difficulties with enforcement of a judgment in the U.S., a favourable ruling would have some value in vindication for Black. But the court also tied this fairness element to the libel tourism issue raised by Canton,

[86]     I agree with the motion judge that it is not appropriate to label it forum shopping or libel tourism if the party has a real and substantial connection with the forum: see Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (S.C.C.), [1993] 1 S.C.R. 897, at p. 920. Further, even if the judgment is not enforceable in the United States, it is enforceable in Ontario, and there is also value in the vindication of a defamation judgment regardless of the ability to collect damages.

Although Ontario courts have resisted libel tourism in the past, Black v. Breedan also reaffirms the proposition that where a case meets the Van Breda factors this is not in fact a case of forum shopping.

Ha-Redeye and Yap — Piedra v. Copper Mesa Mining Corp

By: Law is Cool · September 7, 2010 · Filed Under Civil Procedure, Civil Rights, Environmental Law, International Law, Securities Law · 1 Comment 

In the spirit of increased collegiality and collaboration within the Canadian legal blogging community, LawisCool.com and TheCourt.ca have set aside their heated rivalry to bring you their first ever joint posting. What follows is a commentary on the interesting case of Piedra v. Copper Mesa Mining Corporation, 2010 ONSC 2421.

Commentator for LawisCool.com: Omar Ha-Redeye, Juris Doctor, University of Western Ontario; founding contributor of LawisCool.com

Commetator for TheCourt.ca: James Yap, Juris Doctor, Osgoode Hall Law School, York University; former Senior Contributing Editor, TheCourt.ca.

The Facts

Copper Mesa Mining Corporation is a Canadian company based in British Columbia who planned through one of its subsidiaries to build an open pit copper mine in the Intag cloud forest just south-west of The Cotacachi Cayapas Ecological Reserve, an area of the Andes Mountains of Ecuador. The company is listed on the Toronto Stock Exchange (TSX), but it does not have significant assets or operations in the province of Ontario aside from two of its non-management directors residing in the province.

The Plaintiffs in the case are local activists in Ecuador who have opposed the mine, on the grounds that it will create major deforestation and desertification in the area and threaten more than a dozen animals with extinction. They allege that Copper Mesa through its agents used armed assaults and death threats to intimidate the local activists. Due to a perceived inability to hold Copper Mesa accountable in their country, the Plaintiffs brought a suit in Ontario against Copper Mesa, its directors, and the TSX.

The most novel aspect of the suit is the claim against the TSX for approving and listing Copper Mesa on the exchange, resulting in an influx of capital that would allegedly be used for further intimidation and violence against opponents. Local politicians in Ecuador and environmental supporters in Canada had brought the human rights allegations to the attention of the TSX before its listing. Further, the final prospectus filed by Copper Mesa’s subsidiary to the TSX acknowledge the existence of the conflict,

“[t]ensions surrounding potential exploration and mining work on the Junin property have risen, creating the potential of further escalating violence unless steps are taken to diffuse the situation,” and goes on to report a specific incident in which members of an “anti-mining group” felt “threatened”;

The liability, according to the Plaintiffs, flows from the failure to take any steps to avoid the violence, and that the Defendants knew or ought to have known that violence would ensue if the Copper Mesa subsidiary was financed through the TSX, and should have taken measures to ensure funds raised were not used for improper purposes.  The project was highly dependent on funding from the TSX, with over 80% of the US$26.7 million raised by the Copper Mesa subsidiary raised on the TSX alone. According to the Plaintiffs, it was a brokered private placement of shares approved by the TSX that raised US$4.5 million that allowed Copper Mesa to hire the private security forces allegedly responsible for the armed assaults that form the basis of the claim.

The TSX is considered a specialized exchange for mining, and over 60% of the world’s mining companies are listed on the TSX and related exchanges.

Read more

Warman v. Fournier et al: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases

By: Matthew Nied · May 4, 2010 · Filed Under Civil Procedure, Civil Rights, Constitutional Law, Media Law, Privacy, Privacy Law, Technology, Torts · 1 Comment 

While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these entities generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of plaintiffs who seek these kinds of orders, courts have sought to craft approaches to evaluating applications for disclosure that strike an appropriate balance between the privacy interests of anonymous internet posters and the reputational interests of plaintiffs.

Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.

1. Background

The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.

The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.

This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.

2. Holding on Appeal

The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.

In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:

If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.

[Warman, at para. 33]

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; 
  • whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; 
  • whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and 
  • whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:

In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima faciecase standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers. 

In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.

[Warman, at paras. 41 - 42]

3. Implications

Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.

Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”): 

  • 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 involved in the acts; 
  • whether the third party is the only practicable source of the information; 
  • whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and 
  • whether the interests of justice favour obtaining the disclosure. 

[York University, at para. 13]

Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.

Originally posted on Defamation Law Blog

Reputation Management Law is the Next Big Thing

By: Omar Ha-Redeye · October 13, 2009 · Filed Under Civil Procedure, Evidence, Labour & Employment Law, Law School, Privacy Law, Technology · 1 Comment 

Tony Wilson, of Boughton in Vancouver, wrote in this week’s issue of Lawyer’s Weekly,

Reputation matters… But it’s not just companies and trade-mark owners who have reputations to protect. We all do, and these days, much of our personal reputation is on the web for all the world to see.

Like many professionals, physicians in Canada operate by word-of-mouth referrals, largely based on the personal experiences of patients or other referring physicians. RateMDs has become an increasingly popular site for patients to share experiences about their physician.

It’s become enough of a concern to physicians that Sam Solomon provides some advice to MDs in this month’s edition of Parkhurst Exchange:

  1. Ask for the review to be taken down
  2. The Medical Justice approach of providing patients a contract allowing them to only post reviews on sites that confirm poster identity
  3. Sue
  4. Encourage patients to post positive reviews
  5. Use the criticism as an opportunity to improve practice

It’s unclear whether option 2) would hold up in court, and 1) is rarely effective, either due to confidentiality issues, site administrative policies, or simple refusal.

RateMDs was founded by the same people who made RateMyProfessors.com, RateMyTeachers.com, and the Ratingz.net network of rating sites that includes LawyerRatingz.com.  It seems quite a few of my law professors are up there.  A quick survey reveals that many Canadian attorneys have been rated, and most not favourably.

Assuming that the only people to ever review professionals are clients who have utilized their services is far too presumptuous.  Competitors, business rivals, people with personal vendettas, and even opposing parties in lawsuits can pose as a client in an attempt to portray the person in a negative light.

It can and has happened.  Solomon points to the case of  Dr. Mohamed Foda of Leduc, Alberta, who forced RateMDs to provide information about a negative poster through the California Northern District Court in Foda et al v. RateMDs, Inc.   On April 28, 2008, the Edmunton Sun covered the story,

An Edmonton urologist has launched a $12-million defamation lawsuit against two unidentified people for allegedly posting bogus poor ratings about him on the California Internet site RateMDs.com. In a March 31 statement of claim, Dr. Mohamed Foda alleges the postings were not made by actual patients of his, but by someone who has a “malicious” motive to harm his medical business, and states he will seek to identify the unknown defendants by searching for their computer identifying information. Foda claims the defamatory comments have caused irreparable harm to his reputation and medical practice and caused him emotional distress and anxiety.

The posts in question stated:

“This doctor prescribed me an antibiotic that causes birth defects after I clearly told him I was 4 months pregnant!! Apparently he made a ‘mistake.’” — Posted on RateMDs.com on October 1, 2007

“I found Dr Foda to ignore problems until drastic measures were required. Had to call numerous times to get an appointment. Felt that Dr Foda did not do required follow up in a timely manner. Did not inform patients of what he did in the OR [such as] remove tumours. Would have died if not for another [doctor].” — Posted on RateMDs.com on May 26, 2007

Administrator of RateMDs, John Swapceinski, says that the site gets letters from lawyers once a month.  Not surprisingly, they do not comply with the requests.  The site does serve an important public function for consumers of healthcare.  But Swapceinski also said that Dr. Foda’s suit is the first time a lawyer has actually followed through and sued the site, and he indicated he would cooperate with a subpoena to release the information if one was provided.

In light of the Cohen v. Google and York University v. Bell Canada Enterprises cases I’ve covered previously, it’s probably no great surprise that the court did reveal the identity of the poster.

What is also unique about this case is that the person identified as the RateMDs poster was involved in different lawsuit on the other side of Dr. Foda in Foda v. Capital Health Region, [2007] A.J. No. 22; 2007 ABQB 19, where he was making a claim for breach of contract, conspiracy, harassment, defamation, and direct interference with economic relations.

The Court of Appeal ([2007] A.J. No. 668;2007 ABCA 207) upheld a motion to add a party to his statement of claim, but the defamation claim agains this party was struck for lack of evidence using the test in Botiuk v. Toronto Free Press Publications Ltd.,

62 …it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability.  See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079.  What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances.  In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:

[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood.  In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.

But if the party Dr. Foda was seeking to add in the Alberta case – a Donna Canart,  Surgical Clinic Coordinator at Leduc Community Hospital – is the same person identified in the California proceedings, this evidence may now be available.  Canart allegedly filed a report against Dr. Foda according to the Capital Health Corporate Workplace Respect Policy, raising issues in the Alberta case of malicious prosecution.  However, similar defamation claims in Alberta were made against co-defendant Linda Scott.  The California case has only had two hearings to date, and Dr. Foda only spoke in general terms to Sam Solmon, so it is difficult to ascertain which specific party was behind the RateMDs posting.

Even when a claim is substantiated, it is possible for either party to turn malicious.  The Foda case highlights that litigants in lawsuits can and will attempt to affect the reputation of the opposing party online, something I’ve predicted repeatedly.  All types of litigation will invariably cross over into this specialized area of law.

Some of these rating sites allow the professors to respond to their students, even with video.  Or, as they put it,

Your professors have been reading your comments on RateMyProfessors.com. Now it’s their turn…

I don’t see other professions going the same way, given the nature of client solicitation.  So where do people turn for help?

Wilson concludes,

Just like there was no such thing as Internet law before the Internet or franchise law before there were franchises, a new and growing niche area is “reputation management law.” It straddles libel, slander and defamation law, freedom of speech, privacy law, copyright and trade-mark law, employment law and the rules governing Youtube, Facebook, Twitter and other social media. And like environmental law 25 years ago, it has nowhere to go but up…

Either way, it’s clear that online reputation management is the next big thing that everyone will have to deal with.

Everyone reading this is now searching their name on LawyerRatingz.com, or other sites like  CanLaw.  They’re probably wondering what they would do if they were deliberately maligned, and trying to figure out who is the best”reputation management lawyer” they know, if any.

And that’s assuming that you waited until the end of the article to do so.

Cross-posted from Slaw

Being Tardy Will Cost You…

By: Ryan Venables · September 23, 2009 · Filed Under Civil Procedure, Humour · 3 Comments 

It just goes to show you that being late for court can hurt more than your client’s chances.  A Thunder Bay judge has fined a veteran lawyer with what can be arguably described as habitual lateness.

Although disappointed with the $250 fine, he assured the court that it was not without excuse.

In the end, it just goes to show for all veteran and aspiring lawyers out there, being late can impact more than your client’s pocketbook.

Using a Norwich Order to Reveal Gmail Accounts

By: Omar Ha-Redeye · September 13, 2009 · Filed Under Civil Procedure, Privacy Law, Technology · Comment 

The Ontario Superior Court of Justice released its decision on an application in York University v. Bell Canada Enterprises this Friday.  The case is based on an allegedly defamatory e-mail about the President of York University, Mamdouh Shoukri, saying he had “perpetrated an outrageous fraud.”

A group calling itself “York Faculty Concerned About the Future of York University” protested the appointment of Martin Singer of the new Faculty of Liberal Arts and Professional Studies, questioning his credentials and attaching a letter from other academics who did disclose their names.

But the University is more interested in the identity of the unsigned e-mail, presumably by York faculty, sent from a Gmail account, yfcfyu@gmail.com.

G.R. Strathy J. approved a Norwich order against Bell Canada Enterprises and Rogers Communications Inc. to disclose the identity of the account owners.  A previous order had been approved against Google back in May, which identified the two ISPs as the holders of the information.

A Norwich order is a pre-action discovery mechanism that is described by Spence J. in Isofoton S.A. v. The Toronto-Dominion Bank,

Requests for Norwich relief are largely unfamiliar to Canadian courts.  A Norwich order essentially compels a third party to provide the applicant with information where the applicant believes it has been wronged and needs the third party’s assistance to determine the circumstances of the wrongdoing and allow the applicant to pursue its legal remedies.

The 5 elements identified in this case for granting such an order include:

(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
(ii) 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;
(iii) Whether the third party is the only practicable source of the information available;
(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and
(v) Whether the interests of justice favour the obtaining of disclosure.
[emphasis added]

The privacy interests of the alleged wrongdoer were overcome by the last element, the interests of justice, because of the applicant’s equitable right to information.  Spence J. pointed to Alberta v. Leahy and Bankers Trust Orders (from Bankers Trust Co. v. Shapira) indicating that court orders can override confidential information, even for financial records, and Glaxo-Wellcome PLC v. M.N.R. that the privacy interests of alleged wrongdoers is somewhat diminished.

What is troubling about the latter citation is that the rationale used by the Federal Court of Appeal was that the information could not be considered especially sensitive since it had passed through several hands.  Although the York case does demonstrate that multiple parties may be involved in identifying a defendant, many privacy watchdogs would be concerned that IP information loses its privacy value simply because it is shared.

However, Spence J. did point to other reasons why the privacy expectation may be overridden, because the information is limited by terms of the order for specific purposes and the use of this information is not absolute.  Additionally, a strong case of fraud removes the possibility of a frivolous or vexatious application of the order.

G.R. Strathy J. also discussed the necessity of granting the order for York by citing GEA Group AG v. Ventra Group Co,

…there is no suggestion in the established jurisprudence that [necessity] is a stand-alone requirement for the granting of a Norwich order…

In my opinion, the precise placement of the necessity requirement in the inventory of factors to be considered on a Norwich application is of little moment. The important point is that a Norwich order is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. It is therefore incumbent on the applicant for a Norwich order to demonstrate that the discovery sought is required to permit a prospective action to proceed, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief.

…The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy.

G.R. Strathy J. then pointed to a number of other ways that this information could be obtained without the Norwich order, including the pre-action disclosure in the now-infamous Cohen v. Google Inc. Although both ISPs had privacy policies for the customers, these could be overridden by s. 7(3)(c) of PIPEDA to comply with a court of law.

Given the recently ruling, and assuming it’s not overturned in the future, it’s likely were going to see more Norwich orders used for the purposes of identifying Internet activity.

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