The recent decision of the Ontario Superior Court of Justice in Manson v John Doe (2013 ONSC 628) offers an opportunity to reflect on both the procedures and outcomes of pursuing court actions for anonymous online defamation.
The factual background to the case is relatively straightforward (if somewhat disturbing): the defendant engaged in what the court described as “an anonymous electronic campaign of libel” against the plaintiff; the “defendant” remains anonymous – as the court notes, it is unclear whether there is one defendant or multiple defendants and it remains unclear where the defendant(s) are located. The campaign of defamation included multiple defamatory posts on multiple blogs hosted by various different service providers, and even an email from a Gmail account which contained links to the posts and which was sent to the plaintiff’s work colleagues and superiors. Despite efforts to identify the defendant(s) (including by means of motions to compel the online service providers to disclose the contact details of the individual(s) who had created the accounts which were used and court orders requiring the defendant(s) to identify themselves), the plaintiff and his lawyer were unable to do so.That inability proved somewhat daunting when it came to serving notice of the court action on the defendant – but the plaintiff was able to get the court to validate service via email (2011 ONSC 4663).
Thus, in its way, the case provides a precedent for how to proceed against anonymous online defamatory content: work to get the ISPs to remove the content; work to get the ISPs to provide information in an effort to identify the defendant; attempt service of process via email (which needs to be validated by the court); bring actions against the anonymous defendant and continue with them until you have obtained (default) judgment.
Of perhaps even more interest is the measure of damages which the court awarded. First, it is worth highlighting that the court’s remarks about the content of the defamatory posts:
Even though, with over 200,000 words, the English language is not entirely adequate to describe the nature of many of the posts, some adjectives that do spring to mind include shocking, disgusting, outrageous, racist, provocative.
In other words, this was, to use the colloquial, bad stuff – not “technically” or borderline defamatory, but real, honest-to-goodness defamatory smearing of an individual.
The court awarded damages as follows:
- general damages (for harm to reputation) – $100,000
- aggravated damages (recognizing that the defendant never apologized for or retracted the statements, continued to make defamatory statements even after the initial filing of the statement of claim and actively forwarded the links to the plaintiff’s co-workers) – $50,000
- punitive damages – $50,000
Thus, for a campaign of defamation involving “shocking, disgusting, outrageous, racist and provocative” statements, a total of $200,000 in damages was awarded. (The court also awarded the defendant to pay the plaintiff’s legal costs in the amount of $49,965.89.) It is also worth noting that the court made explicit mention of the fact that the plaintiff is a lawyer in awarding $100,000 in general damages, citing the Supreme Court of Canada decision in Hill v Church of Scientology,  2 SCR 1130, in which the court observed that “for all lawyers their reputation is of paramount importance” – the implication being that a plaintiff who was not a member of the bar might not be able to avail themselves of damages in that amount, which is a troubling conclusion, since it indicates that lawyers constitute some kind of protected class when it comes to defamation actions.