Who falls for e-mail scams?

Lawyers, it seems.  See more on Hot Air.

Billing By The Hour

There has been a great deal of discussion among legal commentators about the failure of hourly billing for legal services and the need for alternatives. The most recent article I’ve seen is in the CBA’s Jan/Feb issue of National. Although I’m a law student and have never billed a single hour as a lawyer, I have worked for more than a decade as an entrepreneur and I wonder … what are the alternatives, really, but masked versions of hourly billing? Given the limited amount of hours available to work in any day/week/year/lifetime, billing by the job MUST reflect the time that the task requires.

Flat fee services must have caps on the input of resources to succeed as business models and, as a result, will tend to put a floor rather than a ceiling on the cost of any given service. At best, a flat fee will reflect the average amount of time required to perform a service. Innovators can find ways of doing things more quickly through economies of scale, computer processing, outsourcing and so forth, but price reductions that service providers choose to pass on to the clients can be built into an hourly billing model just as easily as any alternative. Innovations might put pressure on hourly rates through competition, but this has nothing to do with the method of billing.

Frankly, I fail to see how alternatives to billing by the hour will change the cost of legal services. The real pressures on cost come from the the well-known forces of the marketplace … the rest is just packaging. And if clients are becoming more sophisticated, will they really be impressed by a fancy one-size-fits-all (unless you want more) gift bag?

The real issue is value.  Lawyers that provide it will gain clients and those that do not will lose clients. Those who insist on talking about how the billing is done, please explain (and be nice about it): What am I missing?

Lack of Openness on New Devices Concerning

I have been noticing recently that there have been decisive steps taken against openness when it comes to new devices, and it bothers me. Before I go into this further, let me explain what I mean by “openness”.

Openness

In order for any device to be useful, it needs some kind of software. This is true of everything electronic,  from calculators, to TV’s, to telephones and to most obviously, computers. In the past few years, there has been an explosion in computer-like devices, that is hardware that has an operating system and which can run software other than what is preloaded.

To use an easy example, take a cell phone. Originally, all the cell phone is programmed to do is make phone calls. Then, someone said “why don’t we put games on it?”. Then, “why not a camera?”. Followed by “why don’t we connect it to the internet?”. Lo and behold, we have smartphones. We can now extend the capabilities of our phones and similar devices in ways that were not imagined by their original designers.

Original multi-purpose phones were relatively open. This was done mostly as a convenience to developers: they did not want to reinvent the wheel by writing a new operating system, so they used one that was time-tested: java. This meant that anything that was created using java mobile edition (J2ME) could probably run on a java-enabled cell phone.

Even the original smartphones were open (“smartphone” is a difficult concept. I’ll refer to anything that connects to the internet and allows user-installed programs as a “smartphone”). Windows Mobile (used to be called Windows CE) allowed developers basically unlimited flexibility in creating and distributing software for Windows Mobile devices. Installing software did not require any reverse-engineering, hacking or any type of security bypasses.

I use the term “openness” to refer to precisely this flexibility. Openness does not mean open source, does not mean free software, does not guarantee any freedoms to users. However, developers have a lot of freedom that they can choose to pass on to their users (or not). They can distribute their creations in any form, on any website, charge fees or not, etc.

Current State

Since the introduction of the iphone, there has been a trend in the opposite direction. To use the example of the iphone itself, the only (legal) way for software developers to distribute their wares is through a process that is controlled by Apple from end to end. Apple controls what applications can be distributed, it tracks each user that installs the application, and of course, takes a nice commission from the sale of each app. There are obvious problems with such end-to-end control, including this one.

The problem is that this is not limited to the iphone. Blackberry is doing something similar with App World, although I believe it’s still possible to install apps without appworld. Even the supposedly open source Android platform is jumping on the bandwagon with Android Market.

The only holdout thus far is Windows Mobile probably because the users of those phones are way too used to not having any restrictions on them. We will see what happens once Windows Mobile 7 comes out later this year. I would not be surprised if it has new limitations on the type of software that can be installed.

Of course this is not a problem that is limited to phones. For example, the PSP, a device that is theoretically capable of many computer-like features has been completely locked down and can only play games (that you have to buy and where Sony can take a cut). The Wii has bluetooth functionality that can only work with its own wiimote. Why not other bluetooth devices? This is not even considering upcoming hardware such as the Apple iPad that will mimic the iphone in every way in terms of dealing with third party software.

This is a shame

The main reason I don’t like this is that a lot of potential remains under lock and key. If you look at what the latest iPod Touch is, it’s a computer with 800MhZ, 256MB of RAM, and a 32 (or 64) GB hard disk. I had a computer with similar specs in 2002. My computer in 2002 could do a lot more than my iPod today, even though they are technologically similar. The reason has nothing to do with technology, but has everything to do with poor decisions that keep such devices locked down.

Solutions

Unfortunately, the current solutions to this problem are quasi-legal at best (downright illegal at worst). It involves a healthy dose of hacking and looking for exploits. This in turn can lead to serious breaches of security when the same hack that can be used to install an unauthorized program is used to distribute a virus (again, an iphone example).

The easiest way to prevent this is to avoid having as many people looking for these kinds of hacks. The overwhelming majority of hackers are not malicious people and would not be hacking if their phones were open to third party software. And even if they were hacking, there would not be a need for a wide dissemination of these hacks. This means that the efforts of people who mean well would not end up in the hands of the malicious.

The Business Case

I am well aware of the fact that companies that release locked down devices see a business opportunity in controlling the software that can be loaded onto them. Indeed taking a cut of every program sold online is a good revenue model. However, opening up these devices will inevitably increase their sales. This is pure common sense: the more a device can do, the more people it attracts.

By the way, I am not saying that hardware manufacturers have to stop selling software. Indeed it may continue to make a lot of sense to sell through a centralized place where users know and trust the source of the program. Opening up the device up to users “at their own risk” though needs to be done. Users need to have control over their devices.

Conclusion

The PC industry has realized a long time ago that openness is the way to go. It allows devices to what was never intended or imagined by the original designers of computers. Who would have through 40 years ago that computers would be used for live DJing or advanced image creation (Traktor and Photoshop, respectively)? The engineers that created modern computers 40 years ago were looking for advanced calculators and processing power. Openness and ingenious software developers did the rest.

It’s time for the same thing to happen to our phones, games, and other devices.

Cross-posted at Lawyerling.ca

High Tech without the Cheque

Until recently, medium and large firms were the primary adopters of sophisticated practice management software, such as Time Matters produced by LexisNexis, and other “high” technology. This was due to the high cost of adopting cutting-edge technology, such as the need to have an in-house IT department. However, as the Google-Microsoft war heats up, smartphone apps proliferate, open-source projects continue to deliver competitve software, and hardware costs fall, it’s becoming increasingly possible for small firms and sole practitioners to run a high tech practice on little more than ingenuity and a tolerance to change.

Grant v. Torstar and the defence of responsible communication: implications for bloggers and users of other online media

In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters of public interest” (the “Defence”). The Defence allows defendants in libel cases where statements of fact are at issue to evade liability if they can show that they acted responsibly in reporting on a matter of public interest, even if the statements of fact are untrue. Prior to the decision, defendants could not avoid liability in these cases unless they showed that the statement was substantially true (the defence of justification), or that the statement was made in a protected context (the defence of privilege).

Importantly, the Defence applies not only to journalists and print-based publishers – the types of defendants in Grant and Quan – but also to non-journalist bloggers and users of other online media:

[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree … that the new defence is “available to anyone who publishes material of public interest in any medium”. [Grant, at para. 96]

[Emphasis added]

Although the extension of the Defence to non-journalist bloggers and users of other online media is an important recognition of the growing relevance and legitimacy of these groups, the Defence is – at least currently – unlikely to protect most members of these groups. To gain the protection of the Defence, the defendant must establish two elements: (1) that the publication is on a matter of public interest; and (2) that the publication was responsible, in that the defendant was diligent in trying to verify the allegation. The trial judge will determine the first element. If the judge concludes that the first element is met, the jury will determine the second element, having regard to several factors:

• the seriousness of the allegation;
• the public importance of the matter;
• the urgency of the matter;
• the status and reliability of the source;
• whether the plaintiff’s side of the story was sought and accurately reported;
• whether the inclusion of the defamatory statement was justifiable;
• whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and
• any other relevant circumstances

In assessing whether the defendant was diligent, the jury will be guided by “established journalistic standards”:

[M]any actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]

[Emphasis added]

This indicates that the same journalistic standard must be applied to every defendant irrespective of whether or not they are journalists. As a result, the Defence will likely not apply to non-journalist bloggers and users of other online media unless they perform the due diligence expected of a journalist in the circumstances.

The problem for many members of these groups is that they are generally not guided by established journalistic norms. Although they may approach online publishing in good faith and with a level of diligence reasonably expected of non-journalists, this level of diligence is unlikely to meet the required journalistic standard. For example, although journalists will generally make a point of seeking the plaintiff’s side of the story and speaking directly to witnesses and experts, non-journalist bloggers – who are generally unpaid for their efforts – will rarely have the time, resources, training, or willingness to do so. As one American commentator argues,

blogging and journalism clearly differ. The former ‘implies that a disinterested third party is reporting facts fairly’ (Andrews, 2003: 64). Blogs are ‘unedited, unabashedly opinionated, sporadic and personal’ (Palser, 2002) – in many ways, the antithesis of traditional US journalism. Some say that is the best thing about them. ‘Journalism is done a certain way, by a certain kind of people,’ but bloggers “are oblivious to such traditions” (Welsh, 2003). [Jane B. Singer, “The political j-blogger: ‘normalizing’ a new media form to fit old norms” (2005) 6(2) Journalism 173 at 176]

[Emphasis added]

Even if a non-journalist blogger or user of other online media does engage in the level of diligence required to meet the journalistic standard, they may unknowingly fail to do so in a way that produces a strong record of evidence from which a court can conclude that they did act diligently. As a result, many of these defendants may simply not have access to the protection of the Defence.

Nonetheless, Grant does not foreclose the possibility that courts will apply a different diligence standard to non-journalist bloggers and users of other online media as the “norms of new communications media” evolve. Although the court isn’t clear on this point, these groups might be able to gain the protection of the Defence in future cases even if they haven’t performed their diligence in the same way that a traditional journalist would have:

While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]

[Emphasis added]

Even if the standard applicable to these groups does not shift to allow them to gain the protection of the Defence, juries – who have been tasked with the responsibility for assessing whether the defendant was diligent – may be sympathetic to these groups and apply the journalistic standard less rigidly.

In summary, although the Defence extends to non-journalist bloggers and users of other online media, many members of these groups are unlikely to be protected by the Defence because it requires that they performed the due diligence expected of a journalist. Nonetheless, the law does not necessarily foreclose the possibility that courts will apply a different diligence standard to these groups in future cases, or that juries will less rigidly apply the existing journalistic standard.

Originally posted on Defamation Law Blog

Better than Body Scanners

Despite all the hype about body scanners, there are some very significant limitations to their use.

One issue is limitation of use on children, which can violate child pornography laws. Statements by Canadian officials that there haven’t been any incidents involving children yet is not very reassuring, especially in this industry where mitigation and prevention are the appropriate benchmarks.

A more significant concern is that body scanners is that they are not very effective for ingested or internally placed hazards (i.e. other cavities).

Wired has a technological solution that would address these concerns, without the same privacy issues, through diffraction-enhanced X-ray imaging (DEXI).

Although some may protest the additional radiation exposure, it’s a valid trade-off in my opinion.  Depending on the duration and frequency of flights,  many travelers would have more radiation exposure from flying than these machines.  My radiation exposure working in diagnostic imaging was frequently lower than commercial airline employees.

Ron Livingston Sues Wikipedia over Orientation

The most recent controversy around Wikipedia, and there are plenty to come I’m sure, surrounds Ron Livingston, an actor in Office Space who starred briefly in Sex in the City.  Well it’s Livingston’s sex, or rather his sexual orientation, that is at the center of a current dispute with Wikipedia.

Livingston married Rosmarie DeWitt last month, and yet his Wikipedia entry has been repeatedly vandalized to say that he is gay and living with a Lee Dennison.  He also claims that the same individual made Facebook pages for himself and Dennison and showed the the two in a relationship together.

TMZ states,

Livingston is suing for libel, invasion of privacy and for using his name and likeness without his permission.

Unlike blogs, which go through minimal editing and scrutiny, Wikipedia has a vigorous review process which includes questioning sources and the neutrality of a point of view.  The system seems to have worked, as the references to Livingston’s sexuality were repeatedly omitted.  The problem is that the reference was repeatedly re-entered.

Wikipedia does have controls for this as well, including how to deal with vandals and locking pages that have repeat problems.  We don’t know if this occurred yet, but Livingston could have contacted a Wikipedia editor to invoke these stronger protection mechanisms.  Any court reviewing the case should closely scrutinize the options that were available.

Blogs face a more difficult challenge.  We often try to ensure our accuracy by linking to our sources, and searching as best we can for conflicting opinions.  But especially in the field of law, information does change with new legal development and judicial decisions.  Posts are really only valid for the time-stamp when they are published.We do not benefit from the continuous and ongoing scrutiny of editors the way Wikipedia does.

For this reason, I rely on my readership to inform me when information needs to be updated.  In fact bloggers often depend on that, and most of us are usually willing to make necessary changes.  In case of litigation, we might find sanctuary under the evolving ‘public interest responsible journalism defence‘ described in the 2007 Ontario case of Cusson v. Ottawa Citizen and the 2006 House of Lord’s decision, Jameel v. Wall Street Journal Europe.

The wonderful thing about Wikipedia for the purposes of litigation is that everything is meticulously documented on the revision history and the talk page, including when and what changes were made, by whom, and the corresponding IP addresses.  Issues surrounding the pending litigation are even raised on the talk page among the editors, including the location of the IP addresses making the changes, and news stories about the issue.

One of the IP addresses involved in the Livingston changes also made similar revisions on December 2, 2009 to the page of Sheikh Rashid bin Mohammed Al Maktoum of the royal family of Dubai, adding,

…as well as president for UAE LGBT conference as he is a known homosexual!.

Not that there is anything wrong with that.  But there’s no need to add personal information to Wiki entries, especially if they cannot be substantiated with an independent source, and may cause the person involves some personal harm.

In cases where the control features described above do not work, it may be appropriate to pursue litigation, possibly including the site in order to compel them to provide further information.

But the best strategy for celebrities, corporations, politicians and professionals, as I told a group of marketing professionals at a seminar earlier this week, is to mitigate any adverse impact by establishing a social media strategy yourself.

I Never Knew Hustlers Confessed in Stereo

Over 13  years ago Jeru Da Damaja warned wannabe gangsters in Wrath of the Math,

I never knew hustlers, confessed in stereo.
Or on video,
get caught you’ll know who turned State’s Evidence,
murder weapon, confession and fingerprints.
Mama always said watch what comes out your mouth.
Tight case for the DA from here to down South.
Knowledge wisdom understanding like King Solomon’s wealth.
You’re a player but only because you be playin yourself.

Jah-Youth Sutton probably wasn’t paying attention in 1996 as a 7-year old out in Jersey when this track first broke.

He probably should have when he posted a video on YouTube, where he was laughing at a mother crying at the morgue, talking about his hollow tip bullets, and threatening presumed rival gangs while extensively pointing gang signs at the camera.

Sutton was out on bail for the alleged murder of Darius Powell, 20, pistol-whipping him to death when in 2006, when he was only 17.

Circuit Judge Kenneth R. Melvin was not impressed during sentencing yesterday.  Sutton was given 25 years’ active time, 18 years suspended, and 10 years’ supervised probation.

Let’s hope his supervision includes his YouTube channel.

Get Efficient or See Employees Go Elsewhere

We’re all increasingly dependent on technology.  And as much as we love our portable Blackberrys and iPods, for serious work we usually need an actual computer – a laptop at the least.

The new Kohjinsha Dual Screen DZ Series is now available in Japan for ¥95,800, about $1,170 Canadian.  Yes, that’s a dual-screen laptop computer with two 10.1″ LED displays, Athlon Neo 1.6 GHz MV-40 CPU, 1 (exp to 4) GB RAM, ATI Radeon HD 3200, and 160 GB of storage. There’s even a 1.3 megapixel web camera.

In some industries like health information management (one of my other pre-law areas of study), dual screens are considered a necessity for coders.  Although your law clerk probably already raves about the benefits of dual-monitor workstations in your workplace, lawyers should be more aware of the productivity boost they can receive as well – and now on the go.

Dr. Jon Peddie, a graphics and digital media technology consultant, estimated in a 2007 workstation report that productivity gains from multiple displays can be as high as 42%.

A 2005 study by Susan E. Russell and Katherine Wong of the University of Oklahoma Libraries looked at the use of dual-screen by staff using self-reporting questionnaires.  Respondents found they printed less paper, took less physical notes, found greater ease, noticed less work interruptions, and were able to do so with little training.

The authors note,

The underlying goal of ergonomic studies is to identify ways of enhancing the performance of people and is not directly focused on producing improvements in efficiency merely for financial benefit. Studies have shown that ‘‘designing work methods, equipment, and environments to suit the capacities of the users greatly improves their performance, comfort and health.’’ Although financial advantage from ergonomic improvements may not be easily identifiable, it can be indirectly observed that comfort-related improvements in the workplace often lead to improvements in morale which in turn can lead to higher job performance and/or a better end product…

The main objective for equipping staff with dual-screen monitors should be to improve the physical comfort and the efficiency of the user. In many cases, increased productivity results as a by-product of an improved ergonomic environment.
[emphasis added]

The main drawbacks from the systems in this study was the need for more physical space, and increased cost.  The space factor is not really an issue with the Kohjinsha laptop, and with LCD flat screen monitors getting increasingly slimmer, this is less of a concern for the office as well.

But what about the costs involved, especially if you’re a managing partner responsible for budget expenditures and you’re multiplying this by the number of employees each using dual-screen systems?

Diana Contino, a nurse and MBA currently with Deloitte Consulting, discusses the issue of ROI for technology investments,

Ever-increasing information technology (IT) expenditures often dominate capital budgets. By increasing the amount of capital per employee—a process known as capital deepening—business investment in computers increases output per employee hour (labor productivity).  To improve outcomes and foster greater return on investment (ROI), we seek ways to streamline processes and enhance the accuracy of care delivery strategies…

Classical financial analysis of ROI is reported as a ratio and is a measure of an investment’s performance.  It’s calculated by dividing the return—the money earned during the time period—by the average investment— the average amount invested over the time period. With IT purchases, there’s no set formula because the sum of the gains is difficult to quantify. Investment evaluation involves quantifying savings and expenditures…

The person proposing or evaluating an IT project must consider the savings obtained by:

• decreased manual labor costs
• decreased supply or printing costs
• fewer days in accounts receivable
• the projected life of the equipment and its replacement costs
• the cost of maintaining or upgrading equipment over time
• efficiency gains such as error reduction or improved
• communication between providers

She identifies a number of efficiencies that may present as “quasi-savings” from capital deepening which can relate to workstations and laptops as well.

But the most compelling argument to invest in technology generally, and perhaps dual-screen systems specifically, come from Russel and Wong’s note that respondents in their study found it more difficult once they were accustomed to dual-screen systems to cope in settings like other workplaces where there was only one monitor.

One respondent mentioned spending his or her own money to buy one if faced with losing his or her second screen, and another wrote that he or she ‘‘will defend my monitors with my last breath.’’ It was obvious from the various responses that the perceived value of having a dual-screen monitor system was very high and staff members felt a morale boost because management was interested in their physical wellbeing as well as their efficiency and productivity levels. All respondents concluded that it was worth spending $600, which was the estimated cost of the second flat screen monitor at the time of research..

Turbulent financial markets don’t just affect client work, they can also result in high employee turnover.

And if a relatively small capital expenditure can help reduce the high cost of talent recruitment, it might easily be money well spent.  Especially if it makes it that much more difficult for employees to go to another law firm that hasn’t made the same investment.

Cross-Posted from Slaw

Announcing the Launch of ObiterTweet by Steven Pulver

It’s a law student’s dream – or maybe a nightmare.  Law firm recruiters scouring social media networks to find an appropriate candidate for their firm.

The current recruitment process does little to reveal the personality, collegiality, drive and habits of applicants.  It does nothing to demonstrate their business connections, an important quality for “finders,” or political involvement, for firms that engage in lobbying and government relations.

The majority of law students do spend hours on social media platforms, usually behind walled gardens that they think are impermeable, so why wouldn’t law firms go where they are?  We’ve already seen Edward Prutschi discuss how his firm used Twitter during articling recruitment, which helped them find Joel Welch.

Earlier today Michael Fitzgibbons of Borden, Ladner, Gervais LLP in Toronto pointed to this Globe article, showing an increasing trend by employers to use social media for recruitment.  But is this just commentary about management-side employment practices, or could law firms be using it too?  What about BLG, the largest law firm in Canada? (Hi Halla!)

The firm does have a Facebook group for employees, and another one for law students and lawyers to connect.

But the telling sign is a tweet from last Friday by the firm,

The Toronto office of BLG is looking for a Financial Services Associate with 3 to 4 years experience http://bit.ly/2RJO9I #law #job #career

It appears as if Bay St. firms are not only using Twitter for recruiting, but they’re using shortened urls and hash tags properly too!  Kudos.

For our part, law students are trying to meet the law firms half way.

Enter the brainchild of Steven Pulver – a 1L at UWO  – the first-ever Chief Technology Officer for our Student Legal Society.  Pulver is working on ObiterTweet, an upcoming platform to help law students and law firms interact.

Or as he says,

Twitter, Meet Law School.

Law firms, meet Twitter at Law School too.  Send him an email if you’re interested in participating.

Cross-posted from Slaw

Law School 2.0?

The traditional sense of lecture is obsolete.

Protecting internet anonymity: the case for providing notice to anonymous defendants in defamation cases

An open issue in Canadian internet defamation law is whether courts should require that anonymous defendants be given notice of, and an opportunity to oppose, applications to compel the disclosure of their identities by third parties such as websites and internet service providers (“ISPs”). Because applications to compel disclosure are generally left unchallenged by third parties who would rather evade the costly cross-fire of litigation, courts have tended to review such applications ex parte. The concern in these cases is that anonymous defendants may be stripped of their anonymity – and thereby subjected to embarrassment, social stigma, or harm to their career prospects – all without an initial opportunity to anonymously submit a written response or retain counsel to oppose the application. This post discusses the status of a notice requirement in Canadian, American, and English law and evaluates the different approaches.

1. Canadian Law

Only one Canadian case has commented on the appropriateness of a notice requirement. In York University v. Bell Canada Enterprises, [2009] O.J. No. 3689 (S.C.J.) (“York University”) a plaintiff sought pre-action discovery by way of an equitable bill of discovery known as a Norwich Order. The Ontario Superior Court of Justice granted the Norwich Order, which required ISPs to disclose information necessary for the plaintiff to obtain the identity of the anonymous author of allegedly defamatory emails and web postings. Justice G.R. Strathy noted that it might be appropriate to impose a notice requirement, but declined to do so without providing reasons:

[I]t may be appropriate, in a given case, to require that the unknown publisher of the offending material be given notice of the proceedings. It does not appear to have been done as a matter of course in other Norwich order cases and I did not consider it necessary to do so in this case.

York University was discussed by other commentators in two excellent blog posts on Slaw: the first generally outlining the case, and the second commenting on specific points including the notice issue.

2. English law

The appropriateness of a notice requirement has received more attention in English law. In Totalise plc v The Motley Fool, [2001] E.M.L.R. 29 (H.C.), [2002] 1 W.L.R. 1233 (C.A.) (“Totalise”), the English Court of Appeal described the rationale for a notice requirement. In that case, Justice Owen of the English High Court first granted a Norwich Order that compelled a website operator to reveal the identifying information of an anonymous defendant that posted allegedly defamatory statements about the plaintiff. When the case was appealed on the issue of costs, Justice Aldous noted in obiter that it would have been desirable to require the third party to give the anonymous defendant notice of the application and then allow the anonymous defendant to make written submissions through the third party in order to better inform the court’s decision:

It is difficult to see how the court can carry out this task [i.e. whether to grant the requested order] if what it is refereeing is a contest between two parties, neither of whom is the person most concerned, the data subject; one of whom is the data subject’s prospective antagonist; and the other of whom knows the data subject’s identity, has undertaken to keep it confidential so far as the law permits, and would like to get out of the cross-fire as rapidly and as cheaply as possible. However the website operator can, where appropriate, tell the user what is going on and to offer to pass on in writing to the claimant and the court any worthwhile reason the user wants to put forward for not having his or her identity disclosed.  Further, the court could require that to be done before making an order.  Doing so will enable the court to do what is required of it with slightly more confidence that it is respecting the law laid down in more than one statute by Parliament and doing no injustice to a third party, in particular not violating his convention rights.

Although the obiter from Totalise is compelling, English courts have yet to impose a notice requirement. In the recent case of Sheffield Wednesday Football Club Ltd v. Hargreaves, [2007] EWHC 2375 (Q.B.) a justice of the English High Court dealt with a similar case and, after considering Totalise, concluded in the absence of reasons that

It did not seem to me that this was a case where I should require that the website users [i.e. the anonymous defendants] be contacted before making an order.

3. American law

American law, by contrast, strongly supports a notice requirement. In the leading case of Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. App. Div. 2001) (“Dendrite”), a New Jersey appellate court articulated a series of requirements for plaintiffs to meet before a court would order disclosure. The first of these requires that the plaintiff make efforts to notify the anonymous defendant that they are the subject of an application for an order to disclose their identities so that the defendants have a reasonable opportunity to respond:

We hold that when such an application is made, the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board.

Several notable American cases have adopted the same or similar notice requirements post-Dendrite: Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005); Mobilisa, Inc. v. Doe 1, 170 P.3d 712 (Ariz. Ct. App. 2007); Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (Ct. App. 2008) (“Krinsky”); Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) and Swartz v. Does (“Swartz“) (Swartz, the most recent of these cases, was discussed in a previous post).

4. Analysis

Although both English and American jurisprudence supports a notice requirement, the approaches differ: while Totalise advocates imposing the requirement on third parties, Dendrite and subsequent American cases have consistently imposed the burden on plaintiffs. The problem with the later approach is that plaintiffs are generally in a relatively poor position to give reliable notice because, unlike third parties, they lack access to the defendant’s contact information. As a result, Dendrite and subsequent American cases have merely required plaintiffs to provide indirect notice by posting on the ISP’s pertinent message board, by posting on the same website or medium used by the anonymous defendant to publish the statements at issue, or, if the statements originated in an email, by sending notice to the anonymous defendant’s email address. The concern with these types of notice is their unreliability. There is no guarantee that a defendant will check these sources, or that the website or medium will still exist by the time the plaintiff commences action. And, in the case of email, a similar concern still exists due to the increasingly common use of disposable email accounts that defendants may abandon after sending allegedly defamatory statements.

Yet, imposing the burden of notice on plaintiffs may have some notable benefits. Unlike the approach advocated in Totalise wherein third parties would directly notify anonymous defendants, plaintiffs under the Dendrite approach generally have no choice but to provide indirect notice by posting in a publicly accessible forum. The public nature of a plaintiff’s notice will expose the matter to the oxygen of publicity and may affect the extent of the plaintiff’s reputational harm, depending on the context. In some cases, public scrutiny might result in further reputational harm if the public perceives the plaintiff to be unjustifiably attempting to silence the anonymous defendant. In other cases, however, public scrutiny might serve to alleviate the existing reputational harm by calling into question the veracity of the statements. Third parties might even be persuaded to mount a defence against a plaintiff’s application in cases where there is significant public support in favour of an anonymous defendant but they lack the resources to defend their anonymity.

Another option is to require both the plaintiff and the third party to provide notice. Although this approach would increase the reliability of notice and preserve the beneficial qualities of plaintiff-based notice, the approach seems redundant in the absence of evidence to suggest that the benefits of dual notification outweigh the costs. This is likely one of the reasons why the California appellate court in Krinsky rejected the notion of requiring a plaintiff to provide notice where a third party had already voluntarily done so:

When ISPs and message-board sponsors (such as Yahoo!) themselves notify the defendant that disclosure of his or her identity is sought, notification by the plaintiff should not be necessary.

In summary, a notification requirement imposes a relatively light burden on plaintiffs or third parties while providing defendants with the valuable opportunity to defend their anonymity and better inform the courts’ decision. Although a plaintiff-based approach may have some ancillary benefits, a third party approach provides more reliable notice and should be preferred because it best furthers the primary rationale underlying notice requirements.

Originally posted on Defamation Law Blog

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