Canada: Addressing Anonymity

Tools for the online world

In court proceedings, an anonymous defendant can present a serious problem: What defendant should be named? Who must be served? The prevalence of online anonymity has brought these issues to the forefront for litigants addressing online wrongs. Fortunately, there are tools that our courts have adopted, and adapted, for the online world.

Even anonymous actions leave a trail

Often the first challenge is finding out who is responsible for a defamatory comment or posting of copyright protected materials. Identifying a defendant, after all, is the foundational step in commencing a claim. While comments or postings may not have a name attached, that does not mean that no identifying information exists.

The typical unique identifier tied to online conduct is an IP address, which is "a numerical number attached to each device." ¹

The record that ties a specific IP address to online conduct is normally retained by the operator of the online forum – for example, Twitter, Instagram or Facebook. The record that ties an Internet subscription to an IP address, however, normally rests in the hands of an Internet service provider, like Bell or TELUS. Matching online conduct to a point of access therefore normally requires disclosure from both such non-parties.

The Norwich Pharmacal cure

Orders to obtain such information in the online context have drawn from the Norwich Pharmacal test, which has developed to address pre-action discovery, and has been applied to IP addresses in BC² , and in the Federal Court³ . Obtaining an order requires demonstrating:

1. a bona fide claim exists;
2. the information is required in order to commence an action;
3. the third party is the only practicable source of the information;
4. there is no immunity from disclosure;
5. a relationship exists with the defendant in which the third party was mixed up in the wrongdoing;
6. disclosure by the third party will not cause the third party irreparable harm; and
7. the interests of justice favour granting the relief.⁴

Given this standard, pursuing a Norwich Pharmacal order requires weighing the value of identifying a point of access against the cost of pursuing such an application.

A "Substitute" Option – Online Service

Where the challenge is only serving a defendant, rather than proving liability, substituted service may be a far more reasonable alternative to a Norwich Pharmacal order.

When addressing online conduct, BC courts have permitted substituted service to be done via online channels, normally through the medium used to commit the wrong, such as a private message sent through a webboard.⁵ Service has even been permitted through Facebook⁶.

Given that the goal of personal service is certainty⁷ , it stands to reason that where a defendant has chosen that mode of communication, such service would provide at least as much certainty as more traditional substituted service methods.

Jurisdiction

Of course, in the background in any claim for online conduct is the problem of jurisdiction.

While jurisdiction over online conduct may be difficult to assess, BC courts have provided some helpful guidance on when a claim or litigant are subject to our court's orders, including the decision in Equustek Solutions Inc. v. Google Inc.,⁸ which concluded territorial jurisdiction may result from online business activities conducted in BC, even without a physical presence in the province.

Footnotes

1 Wikipedia "IP address," en.wikipedia.org/wiki/IP_address

2 Pierce v. Canjex Publishing Ltd., 2011 BCSC 1503

3 Voltage Picture LLC v. John Doe, 2014 FC 161

4 Kenney v. Loewen, 1999 CanLII 6110 (BCSC)

5 Burke v. John Doe, 2013 BCSC 964

6 vancouverobserver.com/news/kinder-morgan-serves-legal-papers-pipeline-opponent-facebook

7 Burke at para. 12

8 2015 BCCA 265

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.