Background Facts:

• a law student compares the approaches Canadian and American courts have taken to determining when plaintiffs can access the identity information of anonymous bloggers in defamation cases.

Relevance to Business Activities:

• discovery considerations in the context of online communities and collaboration:
• American jurisprudence is starting to coalesce to a uniform approach to determine whether a plaintiff may compel the disclosure of an anonymous defendant’s identity in internet defamation cases - in Swartz v. Does:
• the plaintiffs subpoenaed Google, the parent company of the blogging service used by an anonymous blogger that published allegedly defamatory statements about them;
• the court:
• surveyed the various standards previously applied by American courts;
• ultimately applied the standard most protective of internet anonymity, which:
• was established in Dendrite International, Inc. v. John Doe (the “Dendrite Standard”);
• requires a plaintiff to meet five requirements, the key requirement being the fourth:
• the plaintiff must make a “substantial legal and factual showing” that the defamation claim has merit.
• concluded that the plaintiffs had made a substantial legal and factual showing on each of the three elements of a defamation claim;
• offered guidance for future litigants by providing a detailed description of how the plaintiffs met the fourth requirement:
• plaintiffs submitted and displayed several copies of the blog posts in question;
• plaintiffs testified that:
• the statements were publicly available for several months and are all false;
• they experienced actual damages from the allegedly defamatory statements, including:
• loss of business;
• harm to their reputations;
• emotional distress; and
• the costs of having to hire a security expert inspect their home.
• held that plaintiffs were entitled to discover the identity of the defendant blogger.
• Canadian jurisprudence has yet to begin coalescing to the same extent:
• the scarce Canadian law on this issue:
• mostly comes from Ontario;
• indicates that plaintiffs can compel online service providers to reveal the identities of anonymous defendants by seeking pre-action discovery:
• through an equitable bill of discovery known as a Norwich Order; or
• by bringing a motion under the applicable rules of civil procedure.
• the requirements of each approach vary substantially:
• the Norwich Order approach requires plaintiffs to establish only a bona fide case of defamation, e.g.:
• York University v. Bell Canada Enterprises; and
• BMG Canada Inc. v. John Doe.
• bringing a motion under rules of civil procedure have different requirements depending on under which the motion is brought:
• in Irwin Toy Ltd. v. Joe Doe, the court required the plaintiff to establish a prima facie case of defamation:
• similar to that required under the Dendrite standard.
• more recently, in Warman v. Wilkins-Fournier, the court held that the plaintiff had no obligation to establish a prima facie or even bona fide case:
• disclosure was automatic upon the issuance of a statement of claim.
• these cases are distinguishable on the basis of differences in the applicable rules of civil procedure, however:
• more uniformity is needed to ensure courts consistently strike an appropriate balance between privacy and reputational interests.

Source Document:

http://defamationlawblog.wordpress.com/2009/10/26/swartz-v-does-american-and-canadian-approaches-to-anonymity-in-internet-defamation-cases/