“The interest of justice does not favour permitting anonymous posters to engage in a campaign of defamation against individuals and businesses,” stated Justice Carole Brown in granting a Norwich order against Glassdoor Inc., in a decision issued May 16. “I note further, from the evidence, that these postings have harmed the Applicants’ business,” the judge wrote in BeneFACT Consulting Group Inc. v. Glassdoor Inc.
While the plaintiff was successful in the application, lawyers in this field say that it can often be a lengthy and costly process to pursue actions against individuals who post comments on review sites or social media that may be defamatory.
“You may bring an application and all that gets you are IP addresses. That may require you to bring another application [against an Internet service provider],” says Ryder Gilliland, who is acting for BeneFACT. “It is an additional challenge when it involves U.S.-based websites, notes Gilliland, a partner at DMG Advocates LLP in Toronto.
While declining to speak about the specifics of the case since the litigation is ongoing, he explains that the general legal obligations of websites focused on user content and reviews is still unclear in Canada. “There is scant law on many of these issues,” says Gilliland, who specializes in defamation and privacy law.
That view is shared by Iain MacKinnon, a partner at Linden & Associates in Toronto, who has a background in media and intellectual property-related litigation. “The law in Canada on this is very murky. As it stands now, it favours internet trolls,” he says.
In the BeneFact proceeding, the consulting company sought information about individuals who posted negative reviews about it on Glassdoor.
Brown concluded that BeneFACT satisfied the five criteria to obtain “pre-action discovery” in the form of a Norwich order.
“Glassdoor provides the website on which the members/posters compose, publish and disseminate their anonymous posts from anonymous accounts. Glassdoor facilitates their anonymous communications and thereby is involved in the acts complained of beyond being a “mere witness,” the judge wrote.
Even if the information that an individual provided to sign up as a “member” on a review site is turned over, it may not be possible to track down the person who posted a defamatory comment, notes MacKinnon.
“The email address provided may be under a fake name. The posts may be from an internet café or a proxy server may be used to conceal the IP address,” he says. “It is an uphill battle. Even if you get a judgment, it may be difficult to enforce that judgment.”
Media publications in Canada may face some liability if they do not remove potentially defamatory user comments once it is brought to their attention. However, most large online review-based or social media sites such as Twitter, for example, are headquartered in the United States. They are protected by provisions in the U.S. federal Communication Decency Act, which generally provides immunity for providers and “interactive computer services” from content posted by third-party users.
Andrew Bernstein, a partner at Torys LLP, says the act “essentially inoculates website owners from most defamation claims [in the U.S.], which are already harder to establish there.
“It is more difficult to get them to do anything.
“There is very much a pro free speech attitude,” adds Bernstein, who specializes in defamation, intellectual property and copyright law.
An action could still be brought in Canada against not only the individual who posted the comments but the website service that provided an online platform, but Bernstein says there would be a number of defences available.
“They do not have an affirmative obligation to monitor the content, provided they have a complaints process.
“On a review site, it is inevitable that some comments will be negative [although not necessarily defamatory],” he says.
“Eventually, we will get a case here where someone sues the site,” says Bernstein.
Glassdoor did not have a lawyer attend the Superior Court hearing and, in a statement to Law Times, it questioned the jurisdiction of the court.