How do you sue someone you can’t identify?
How do you sue someone you can’t identify?
Lawyers Sara Erskine and Shannon Bennett did just that in Ontario’s Superior Court.
Their clients, Theralase Technologies, Roger Dumoulin-White and Kristina Hachev, were successful against 10 “John Doe” defendants.
In the Jan. 13 decision, Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, Justice Frederick Myers found that “judgment can issue against the defendant despite the fact that the plaintiffs and the court do not know the defendant’s name.”
“It's a circumstance in which the courts and the law of defamation is keeping pace with the times and technology,” says Erskine. “Because today, there are so many ways in which individuals can hide behind a pseudonym, and make an anonymous posting and make it very, very difficult for individuals to pursue them for the things that they are posting. So Justice Myers’ decision now demonstrates there can be consequences for anonymous posters. In the past, that wasn't the case.”
The case revolved around Stockhouse.com, a website with public and private messaging forums for traders and investors. The people accused of defaming Theralase did not use their real names to post on the forum; Rather, they sent messages using names such as PennyOilKing, BlueBomber6, BionicJoe, MacMan1519, NastyNasta, Need2Know68, TrueNorthStrong, TuesdayNightRid and CrazyTrader12.
The anonymous internet users accused the pharmaceutical company of operating “unlawfully and improperly,” and said the mangers were “untruthful and unprofessional,” and “incompetent managers who have committed criminal acts,” at one point using misogynistic slurs that were “particularly disgusting,” wrote Myers.
Stockhouse.com could only provide email addresses associated with the accounts, which Erskine and Bennett obtained through bringing an application to get the information. The lawyers informed the so-called trolls of the lawsuit through the forum and the email addresses, although some of the accounts went dark at various points in the proceedings.
Still, their efforts were enough to convince Myers that the case should have caught the attention of the defendants.
“If notice does not reach the users, it is because they choose not to access the accounts from which they made their comments or the email addresses that they provided,” Myers wrote, adding that amid “evidence that a person is actively evading service, such as by shutting down a previously active email address or website account after learning that an action exists,” it remained conceptually possible to contact them.
Myers ordered the defendants to pay substantial indemnity costs of $55,000 all-inclusive and assigned each troll individual damages awards of $10,000 and up, based on the severity of the defamation.
Although it may be difficult to collect the award, Erskine says it was important to her client that its reputation be restored.
“A decision that postings are defamatory provides not only a monetary award to the plaintiffs, but it also provides vindication and helps to restore their reputation,” Erskine says. “It provides an opportunity, I think, based on Justice Myers’ precedent, for individuals who cannot or companies who cannot identify the individuals to still pursue and obtain, at least, that judgement.”
Erskine says the decision could provide useful precedent in multiple areas of the law. For one, she says, it will likely cause people posting anonymously to think twice about if they will stand behind their postings if they have to come forward and defend them.
“Nothing in the Rules of Civil Procedure anticipates final judgments being granted against unidentified defendants,” wrote Myers. “There are many cases started with placeholder names like ‘John Doe’ pending the identification of the actual defendant before final judgment issues. But counsel was able to locate only one precedent in Ontario specifically granting a final judgment against an unidentified party.”
Myers’ approach to calculating damages — by assessing each poster’s comments individually — was also novel, says Erskine. Myers wrote that “if people want to make hurtful statements about others and then try to hide from the responsibility to prove the truth or other justification for doing so, then, as discussed by Goldstein J., their cowardice is reprehensible and, in my view, they should bear costs on a substantial indemnity basis.”
In Myers’ decision, he considered that some anonymous internet posts (though not those by the defendants,) are “legitimate,” namely “persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers.” When asked about whether the decision could create a “chilling effect” on internet speech, Erskine noted that provisions exist to protect against Strategic Lawsuits Against Public Participation.
“The internet makes everything global: Things posted on the internet are really international. They're not just in one jurisdiction,” says Erskine. “But I think that it is up to the defendant to come forward and to put forth their defense. I think that's really what Justice Myers is referring to when he says that if they continue to hide behind their anonymity, that's ‘cowardice.’”