Library:
Another Internet Disclosure Case
Published in the September 2009 issue of Litigation Notes - View Article
The Ontario Superior Court of Justice has ordered two internet service providers to disclose the identity of the poster of allegedly defamatory material.
In the August edition of Litigation Notes we reported on a case in which the Supreme Court of the State of New York forced Google to reveal the identity of an anonymous blogger, in order to permit the commencement of a defamation action (Cohen v. Google Inc.). On September 9, the Ontario Superior Court of Justice released a decision which arrived at precisely the same result. In the manner of Lord Denning, Justice Strathy introduced his decision with the following:
“The internet is the most revolutionary communications tool since the printing press. It is extraordinarily accessible and powerful. It is available to anyone who has a computer and an account with a service provider. The user has the ability to roam the internet with anonymity to read and write just about anything he or she chooses. As is always the case, however, technological advancement breeds new legal questions. Can the internet be used with impunity to spray libellous electronic graffiti in cyberspace? How absolute is the user’s anonymity? Will the Court compel the internet provider to disclose a customer’s name? In this case, I answered “yes” to the last question and ordered two internet service providers to disclose the names of their customer(s) to the Plaintiff. This endorsement explains the reasons for my decision”.
The background of the case is that in January of 2009 the President of York University in Toronto, Mr. Mamdouh Shoukri, named Professor Martin Singer as the inaugural dean of the Faculty of Liberal Arts and Professional Studies. An anonymous individual or group identified as the “York Faculty Concerned About the Future of York University” sent an e-mail to various recipients in which they attacked this choice and alleged that President Shoukri had misrepresented Professor Singer’s academic qualifications. The text of the e-mail was subsequently posted to the website of a union local and the story was picked up by the University of Toronto’s newspaper and published under the heading “York U President Accused of Fraud”.
York University brought an application for a Norwich Order (see the GEA case supra) to compel two internet service providers to disclose the identity of the originator of the e-mail. Justice Strathy reviewed the history of the Norwich Order and observed that in Ontario, there is precedent for the granting of an order of the nature requested, quite apart from a Norwich Order. In Irwin Toy Ltd v. Doe, the Ontario Superior Court of Justice granted a motion under Rules 30.10 (Production from non-parties with leave) and 31.10 (Discovery of non-parties with leave) of the Rules of Civil Procedure, requiring an internet service provider to disclose the identity of the sender of an allegedly defamatory e-mail message to some 75 employees of the plaintiff. Justice Strathy also observed that there is authority for ordering a publisher of an allegedly libellous statement to disclose the identity of the author of that statement.
He went on to apply the test set out in the GEA case. He concluded that York had demonstrated a prima facie case of actionable defamation, that the internet service providers were clearly the conduit by which the information was communicated, that they were the only practicable source of the information and that the applicant had agreed to pay costs to the service providers, which were nominal in any event.
Justice Strathy went on to consider the interests of justice and said that the court is “required to balance the benefit to the applicant in revealing the desired information against the prejudice to the alleged wrongdoer in releasing the information. He said that the internet service providers have service agreements with their customers which permit them to release personal information where required to do so by statute or court order. Consequently, the customer could “reasonably contemplate…that his or her identity may be disclosed by order of the court in the event that he or she engages in unlawful, abusive or tortious activity”. He also referred to provisions in Canada’s Personal Information Protection and Electronic Documents Act which allows personal information to be disclosed where required by court order. While the custodian of personal information is probably under an obligation not to disclose it without a court order, the requirement to establish a prima facie case before obtaining a court order “… is a reasonable balance between protecting freedom of speech and protection from libel”.
Justice Strathy went on to say that in an appropriate case the internet service provider should be required to give notice to its customer for the purpose of enabling the customer to make submissions as to whether the order should be granted, as was done in the Cohen v. Google Inc. case.
York University v. Bell Canada
Enterprises,
2009 CanLII 46447