In Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, the Ontario Superior Court of Justice entered default judgment against defendants who posted defamatory comments online anonymously and could not be identified by name by the plaintiffs.

 

The Facts

 

The plaintiffs in this case are a pharmaceutical company, Theralase Technologies Inc., and two of its officers.

The defendants were alleged to have anonymously posted defamatory statements on Stockhouse.com, a website with information for investors about publicly traded companies in North American markets.

The anonymous posts were described by the Court as asserting “that Theralase management are untruthful and unprofessional, the corporation is operating unlawfully and improperly from the investors’ perspectives, and the personal plaintiffs are unprofessional, incompetent managers who have committed criminal acts.” There was also a misogynistic post about the female Chief Financial Officer of the company.

Each company listed on Stockhouse.com has a separate page with a message board function called the “Bullboard”, which can be used to publicly discuss the company. The “Bullboard” allows users to publish comments anonymously using pseudonyms. In addition to the “Bullboard”, Stockhouse.com has a private messaging function.

The plaintiffs alleged that the defendants published defamatory statements regarding each of them on the Theralase Technology “Bullboard”. The plaintiffs recognized one of the posters as a former employee, but they could not identify any of the others.

 

Procedural Steps Prior to Default Judgment

In order to get to the point of obtaining a judgment against the anonymous defendants, the plaintiffs had to take certain steps to ensure the defendants had notice of the claim.

First, the plaintiffs named each of the defendants in their claim by the pseudonym used to post the allegedly defamatory comments.

Next, they obtained a court order requiring Stockhouse.com to provide identifying information for the anonymous defendants. The website provided the email addresses used to create the profiles.

The plaintiffs then obtained an order allowing them to serve their claim on each of the defendants at the email addresses provided by Stockhouse.com. The defendants were also served with the claim by private message to their Stockhouse.com accounts. One defendant responded to the claim and one email address was no longer active. The other ten defendants failed to respond.

Finally, the plaintiffs noted the eleven defendants who failed to respond to the claim in default.

 

The Default Judgment

The plaintiffs then brought a motion for default judgment against the defendants who had been noted in default.

Though plaintiffs frequently initiate actions against unnamed “John Doe” defendants, a defendant’s legal name is usually known by the time a court enters a final judgment. The fact that the plaintiffs could not identify the defendants by name prompted the Court to consider whether it had jurisdiction to enter a judgment against them.

The Court first reviewed an Ontario decision – Manson v. John Doe, 2013 ONSC 628 – where judgment was granted against an anonymous internet poster. However, in Manson, although a defence was never filed, the defendant had responded to an email from the plaintiff’s counsel before default judgment was obtained. In this case, most of the defendants had not responded to the claim at all.

The Court then reviewed a U.K. Supreme Court decision – Cameron v. Liverpool Victoria Insurance Co. Ltd., [2019] UKSC 6 – where that court held that jurisdiction for granting judgment over an anonymous defendant depended on the adequacy of notice. If the method of serving the anonymous defendant with the claim could “reasonably be expected to bring the proceedings to the [defendant’s] attention”, a court may exercise jurisdiction over that defendant.

The Court in this case granted default judgment against the anonymous defendants who had not responded to the claim, finding that the method of service via email and the Stockhouse.com private message feature was sufficient.

After reviewing each of the defamatory posts, the Court awarded damages in amounts ranging from $10,000 to $65,000 for each defendant.

 

Comment

This case will be of interest to businesses and individuals dealing with anonymous defamatory Internet posts. Would-be plaintiffs should bear in mind that while serving an anonymous defendant and getting a default judgment appears to be possible in Ontario, enforcing that judgment will be difficult.

Emma Romano is an associate at Bersenas Jacobsen Chouest Thomson Blackburn LLP, with a focus on media and defamation, aviation, commercial and general civil litigation.