RSS FeedProtecting 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
Google Offers Free Ambulance Chasing Devices
Just like Google’s Street View feature, which followed a Canadian launch after being tested in the American market, Google introduced this month traffic levels for major Canadian cities after almost three years of use in the U.S. In the past week the service was extended from mobile devices to web browsing as well.
Toronto.com has offered much more limited traffic features for several years, but nothing even close to the level of detail or interactivity provided by Google.
Late this summer Google had expanded the service to include arterial roads, which was a major complaint among American users. They also rolled-out a crowdsourcing feature that would track the speed of vehicles using Google Maps on mobile devices to help determine best alternative routes during congestion times.
One bulletin-board user asks,
If I am walking down the street with Google Maps open on my BB, I wonder if this skews the data?
The response he gets from another user appears at first quite simple,
They average out the data… so unless you have a marathon of people all having google maps on for some reason, one or two people walking down a major street most likely won’t affect the traffic readings.
That assumes, like financial markets often do, that people always behave rationally. People do not always behave in rational ways.
Interruption of Question Period this week to raise the issue of climate change is just one of a growing phenomenon of flash mobs that could easily affect crowdsourcing data in the aggregate. Just look at the many flash mobs in tribute to Michael Jackson alone in past months.
Google also launched a mobile service providing GPS with features like 3D views, turn-by-turn voice guidance and automatic rerouting. The last feature would be especially useful in light of traffic conditions, and alternate destinations can be plotted by voice to comply with hands-free legislation in Ontario and similar laws in Saskatchewan, Alberta, and B.C. Users can also search by voice for services and landmarks along the way. Devices will be able to use the service in the U.S. starting Nov. 6.
In one of those more common moments of more predictable behaviour, the shares for GPS navigation systems fell by 9.5% for Tom Tom and 18% for Garmin on Tuesday alone, dropping further during the rest of the week. Still, many analysts point out that the mobile services available from Google aren’t comparable to GSP systems. Signals often cut out, and don’t reliably provide directions when they are needed. But Google can address this by caching information on devices instead of streaming, and in the long-term this will likely replace the GPS systems entirely.
Given the association between car accidents and traffic jams, litigators may be able to replace their police radio scanners with Google Maps and arrive on the scene before first-responders to offer their services.
They can find alternative routes to the scene through hands-free instruction and use Street View to get an idea of the physical layout before they arrive. They can even do it walking down the street if the traffic is really backed up. And barring a re-enactment of “Beat It!” en route to the accident, it doesn’t seem like anything can stop them.
Defence counsel, be forewarned.
Beware the libel
Simon Singh, a British journalist and a popularizer of science, is fighting a lawsuit. In his article for the Guardian, Singh wrote that the British Chiropractic Association (BCA) promoted bogus treatments. The BCA sued him for libel. Is it right that our words can cost us dearly? What about the freedom of speech? First of all, let’s find out what the freedom of speech really is all about. Then, let’s see why we have libel laws and what we can learn from the Singh case. The Internet gives everyone a potential audience, so watch what you say if you have libel laws in your country.
The Western culture loves the freedom of expression. In Canada, the Charter of Rights and Freedoms calls it a “fundamental” freedom that “everyone” has. In the US, the First Amendment prohibits Congress from “abridging the freedom of speech.” We value our right to speak freely, and we believe it is essential for democracy. It’s not surprising then that libel suits ruffle a few feathers. But constitutional laws like the Charter and the Bill of Rights protect our speech from the government, not from our neighbours.
Flu shots can give a different kind of immunity
Swine flu vaccine makers may get a special gift from the federal government: immunity from civil negligence suits. You may not have heard about it because other swine flu news recently got much more spotlight. First, Ottawa spent five times as much on stimulus plan ads as on H1N1 awareness. And the federal Health Ministry shipped body bags to aboriginal communities to help them prepare for the epidemic. But the story about legal immunity for vaccine makers is equally deserving of national attention. Taxpayers will foot any bill for the government’s protection of pharmaceuticals, and vaccine users may bear an excessive risk of death or injury. Although the US already offers immunity to vaccine makers, Canada is different enough to require careful study and discussion of this issue.
Immunity from legal suits in this case means if the vaccine is a suspected cause of death or injury, the law will not allow victims to sue the vaccine manufacturer. They may have no recourse at all, or the government may compensate them from a special fund. The immunity shifts the risk of mistakes in vaccine making from the pharmaceutical industry to victims or to taxpayers. Under the common law, negligent companies are liable for injury or death caused by their products. But the government can protect a company from the common law liability by statute or executive decision. The main reason is to bring vital products to as many people as possible faster and at a lower cost. The government may need as many vaccine doses as possible sooner to prepare for a coming pandemic. Protecting themselves from legal liabilities can slow vaccine makers down or make the vaccine too expensive. To get a lot of vaccine fast, the government shifts the risk from pharmaceutical companies to taxpayers or vaccine users.
Unless the government compensates victims, the vaccine makers’ immunity shifts the whole burden and risk of injury or death to vaccine users. The US government has granted immunity to vaccine makers after the 1976 swine flu outbreak, but it has set up a fund to compensate victims. This is essentially a specialized public health insurance fund. For a victim to take advantage of it, a special federal court must approve the claim. It’s also an insurance fund for pharmaceuticals because taxpayers pay for their negligence. It’s not clear if vaccine makers have to pay any premiums to get the protection. And no immunity is available for wilful acts, such as intentional tainting of the vaccine.
What about Canada? Are we at the moment of truth before the epidemic hits? Are the demand for the vaccine and the threat of legal liability so high that they are bogging down pharmaceutical companies? Or are vaccine makers trying to maximize their profits at the expense of Canadian taxpayers? The federal government refuses to tell if it will shield pharmaceutical companies from liability. GlaxoSmithKline, which has already signed a contract to make 50.4 million vaccine doses at its plant in Quebec, says only that it’s talking to Ottawa. It’s already much more difficult to sue for medical or pharmaceutical malpractice in Canada than in the US. Any immunity will lower the incentive to make vaccines safer, although they will not necessarily be less safe. We don’t know if the Quebec facility can simply conveyor doses out, or if more R&D and testing are required. Neither do we know if the vaccine will be mandatory taking away our choice between the risks of the swine flu and vaccine side effects. But even if the shot is voluntary, the government should require warnings before the vaccine is administered—that is, of course, if it makes us bear the risk of vaccine makers’ negligence by offering them immunity.
Crown liability for negligent release from jail
Father seeks compensation for son killed by pedophile
Bastien was out on an extended pass from a detention centre where he was serving time for several unrelated offences.
Three weeks after the slaying, then-public security minister Serge Ménard said Bastien shouldn’t have been let out.
Driving While Under the Influence of Texting
The use of cell phones while driving has become increasingly controversial, with some studies suggesting that the practice costs thousands of lives by slowing the reaction time of drivers.
As many Canadians have already heard, Ontario is passing Bill 118, a special piece of legislation that bans the use of cell phones and texting devices while driving.
There has even been recent fuss online of a man observed shaving his head while driving, but nobody is suggesting that electric shavers should be banned too. It’s possible that Liebeck v McDonald’s would be decided differently today – with drinking coffee while driving reducing the punitive damages even further under a more recognized state of contributory negligence.
Yesterday the New York Times provided driving game that readers can use to see how texting would reduce their own reaction time. Just don’t expect to use this test as a defence for a subjective test for impairment under the new legislation.
Oil Companies Murdering Activists in Nigeria
Catherine Boyle of the TimesOnline reports:
Shell, one of the world’s biggest oil companies, will go on trial over allegations that it was complicit in the execution of a well-known Nigerian environmental activist and author…
If the action is successful, the trial will be a landmark case on how global companies can be held accountable for human rights abuses in countries in which they operate. It is a test for the Alien Torts Statute, which allows non-US citizens to file suits in US courts for alleged international human rights violations.
h/t Daniel Ho
Chuck Norris’ Tears Don’t Cure Cancer
So he claims, in a lawsuit against book publisher Penguin.
Chuck Norris is suing the publisher for releasing a book called The Truth About Chuck Norris: 400 facts about the World’s Greatest Human.
The book contains numerous allegedly “mythical” facts about Chuck Norris which were collected from the internet. The facts include:
- “Chuck Norris’s tears cure cancer. Too bad he has never cried.”
- “When Chuck Norris does a push up, he isn’t lifting himself up, he’s pushing the Earth down.”
- “There is no theory of evolution. Just a list of creatures Chuck Norris has allowed to live.”
- “Chuck Norris is not afraid of the dark. The dark is afraid of Chuck Norris.”
The lawsuit alleges that the book resulted in trademark infringement, unjust enrichment and misappropriation of personality.
You will note that Chuck Norris is not suing for defamation. I suspect that’s because truth is a defence.
What I can’t understand is why Chuck Norris is bothering to sue. We all know that Chuck Norris doesn’t step on toes. Chuck Norris steps on necks.
Online Privacy: The Noose Tightens
The scholars, captains of industry and champions of justice who compose Law is Cool‘s readership will have long since scoured their online social networks for photos or other items tending to compromise their integrity — reports of “the dark side of social networking” are thick on the ground. But a recent court decision may renew paranoia that privacy is an artefact of the twentieth century, doomed to join its contemporaries (pagers, Chris Tucker, student activism, literacy, the Ark of the Covenant) in oblivion.
Just weeks after finding that Canadians have no expectation of privacy in their online identities, Ontario’s Superior Court of Justice has ruled that posts on Facebook and other online social networks may be discoverable against their makers, according to the Star’s Tracey Tyler.
Plaintiff John Leduc claims that injuries sustained in a car accident in 2004 have lessened his enjoyment of life. The court found that Leduc may be cross-examined on the contents of his Facebook account where such contents are relevant to his claim — despite the fact that security settings on his account restricted access to his profile to only his close friends.
If Leduc’s Facebook account contained evidence of him
- exerting himself,
- stopping to smell roses,
- “seizing the day” in any fashion, or
- otherwise engaged in merriment,
such evidence might undermine his claim. Pictures of him sitting on the roof of his car watching the sun set over a northern lake, or snowboarding through thick powder with the caption “Go for it!” beneath him, would be especially damning.
The decision overturns a Superior Court case management master’s ruling that forcing Leduc to produce the contents of his Facebook account amounted to a “fishing expedition”, since there was nothing — except Leduc’s opposition to disclosure — to suggest that any compromising photos in fact existed. Leduc’s profile consisted only of his name and picture.
A search of Facebook for accounts registered to “John Leduc” yielded 129 results — many of whom appeared to be enjoying themselves.
Bloggers, Beware of Comments
According to Out-law, the English High Court has ruled that a man who did not delete an allegedly-defamatory post from his blog could not sue the poster in defamation.
Christopher Carrie, the would-be litigant, established the blog in 2007 to promote his self-published book, in which he alleges that he was sexually abused by the late Father John Tolkien, who died in 2003. Tolkien was the son of an author with whom you may be familiar. According to Carrie, Tolkien’s grandson Royd Tolkien posted a comment on his site, accusing Carrie of lying about the abuse to extract money from the Catholic church.
The court found that by leaving the inflammatory remarks online, Carrie had consented to their publication, which contradicted his assertion that the post caused him “substantial upset and distress”. The ruling is here.
Summary judgment: Leaving the post online for all to see does little to alleviate the suspicion that Carrie was trying to cash in by besmirching a famous surname.
Judge’s Daughter Sues Driver After Accidentally Killing His Passenger While Intoxicated
Elizabeth Shelton, the 21-year old daughter of a state district juvenile judge, was convicted last year of intoxication manslaughter for the death of her boyfriend. Shelton caused his death when she crashed a Lexus SUV into the back of a truck he was passenger to.
Her blood alcohol concentration was more than three times the legal limit at the time, two tests showed.
Shelton was sentenced to four months in jail and eight years probation.
Now, Shelton, her family and the family of the boyfriend who was killed are suing for $20,000 for the destruction of the Lexus SUV she was driving and an undetermined amount for mental anguish, pain and suffering.
Shelton has named 16 defendants, including insurance companies and banks. According to the defence, “They’re just throwing everything against the wall to see if anything sticks.”
During Shelton’s trial, it was disputed by experts brought in by the defence and prosecution whether or not the other driver had swerved into Shelton’s lane.
Testimony also showed that the company the driver was working for let the insurance on the truck lapse.
Writing in the lawsuit, Shelton’s attorney claims that “The injuries and property damage sustained by (Shelton and her family) were not the result of intentional acts, but were accidental and caused by the negligence of the uninsured/underinsured driver.”
It stands to wonder how a sober Shelton would have reacted to the disputed swerve. It seems that Shelton is responsible for at least the bulk of the damage to the car and her own mental anguish, pain and suffering.
Also, a truck is not made more likely to swerve by being uninsured. Presumably, the company had to pay either way for liable damages, whether directly or through an insurance company, as well as any state fines that resulted for having the truck on the road uninsured.
This lawsuit is akin to a negligent shooter suing the friend of the victim for the cost of the bullet and its tragic, avoidable consequences.
Liebeck v. Starbucks – The New Chapter of Hot Torts
We all remember the classic case of Liebeck v. McDonald’s. Well it seems other hot drink vendors didn’t learn this important lesson.
A woman in Manhattan is suing Starbucks for $3 million for her hot drink. It’s tea this time, not coffee, but it did result in some pretty nasty third-degree burns.
Tara Darrow, a Starbucks spokeswoman, said,
our customers enjoy our beverages hot, and unless we are asked otherwise, we serve them that way.
No explanation was available for why not a single Starbucks employee helped the 77 year-old woman as she shrieked in agony.
To make her ordeal worse, she fell out of bed while at the hospital and fractured several bones. However, hospital negligence is one cup of hot water Starbucks will likely evade.
Updates
In the meantime, McDonald’s might be making more ground-breaking law, this time in the area of privacy. Aaron Brummley, a McDonald’s manager, found a cell phone in his restaurant and the nude pictures of the phone owner’s wife somehow found their way on to the Internet.
After the wife received harassing and threatening text messages and experiencing “emotional distress,” the couple decided to sue McDonald’s for $3 million.
