By LegalMatters Staff • Ordering anonymous online posters to pay thousands of dollars in damages for defamatory statements they made on an internet chat forum is “a good starting point” but falls short of effectively addressing the issue, says Toronto litigator and lawyer Howard Winkler.
In an Ontario Court of Justice judgment released on Jan. 13, Justice Frederick Myers ordered 12 anonymous posters to pay damages and court costs for defamatory comments made on a website chat forum.
“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 … their cowardice is reprehensible and, in my view, they should bear costs on a substantial indemnity basis,” Myers writes.
Winkler, principal and founder of Winkler Dispute Resolution, says the decision is a victory for the plaintiffs even though the chances of collecting damages appear slim.
“The good news is that by getting a judgment the plaintiffs could argue that their reputations have been vindicated and that’s an important remedy in a defamation case,” Winkler tells LegalMattersCanada.ca. “What I find curious from a legal perspective and what would have pushed the envelope in terms of legal principle, is if they had also sued the website operator.
“That would have advanced the limits of the current law in Ontario. I’m not sure the issuing of a judgment against a John Doe really moves the legal envelope very far.”
The Globe and Mail reports that the defamatory comments were posted in 2014 and 2015 on an investor-oriented message forum directed at a publicly traded pharmaceutical company, and its two principals, criticizing them personally and professionally.
While the website operator was unable to provide the real identities of the posters, it was able to give the plaintiffs email addresses, allowing them to serve the lawsuit, according to The Globe.
Only one defendant responded to the lawsuit and his case is ongoing, The Globe reports, while the others were noted in default.
12 commentators ordered to pay damages
In his ruling, Myers awarded general damages ranging from $7,500 to $35,000 against each of the 12 and ordered them to pay $60,000 in legal costs, while noting “how the plaintiffs will go about amending the title of proceedings for enforcement purposes once they identify one or more of the defendants is not before me.”
“I make no findings about how any judgment is to be enforced against a person who is currently identified only by a pseudonym,” he writes.
Winkler, who was not involved in the case and comments generally, says one interesting aspect to note is that “we don’t know if any of the traditional defences would have succeeded if the matter had been defended.”
He says while the plaintiffs scored a “symbolic victory of vindication, it cost them a lot of money and they are unlikely to recover any of the damages or costs awarded.”
Going after an anonymous poster is akin to attacking the symptom while failing to address the cause, says Winkler, using recent cases in Australia as an example of a better approach.
“Their courts have had the opportunity to consider the issue and have ruled quite clearly and consistently that if a website operator has knowledge of defamatory content on their site and they don’t remove that content, they become co-publishers and they become responsible,” he says. “We haven’t had the opportunity to have that principal tested here but if one is really concerned about the proliferation of anonymous defamatory material on the internet you need to look to those websites that are facilitating it.”
Winkler says while there may be instances where pseudonyms are permissible, the website operator should still be responsible for collecting the true identity of the poster, “then you would be able to hold those people accountable for what they say.”
“If knowing that your real identity can be disclosed or discovered, I think people will be more careful about what they say and I think that’s part of the solution to the problem,” says Winkler, adding website owners must also be forced to face up to their responsibilities.
“All you need is one big judgment against an operator for knowingly permitting defamatory material to be posted on their website to have them change their behaviour.”
A warning sent to others
He says Myers’ judgment serves as a warning to those who try to hide behind a pseudonym.
“What it says to an anonymous poster is we can get a judgment against you and if we can find out who you are, you are going to be held accountable. So it’s a good starting point,” Winkler says.
However, he cautions that more has to be done.
“Confirming you can obtain judgment against a John Doe is important but I don’t think it amounts to a radical advancement of the law of defamation in holding people accountable for what they say,” Winker says.
“I think the best way to prevent these kinds of anonymous defamatory postings is to require the platforms to take more responsibility and be more accountable for what they are facilitating.” Such an advancement should not have the effect of limiting genuine free speech.
For more, see Howard Winkler’s interview with The Lawyer’s Daily
Originally published by LegalMatterscanada.ca on February 10, 2020