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Dear Mr. / Mrs. Doe – Please pay up!

What do you do if an anonymous blogger has defamed you online?

The first thing you do is use all available means to remove the defamation from the web and to identify Mr. / Mrs. Doe, using forensic investigators specializing in cybercrime, and lawyers specializing in cyberlibel. This process involves sending take-down requests to Internet service providers and website operators. It also involves obtaining special Court orders for information leading to the discovery of Mr. or Mrs. Doe’s identity.

Sometimes Mr. / Mrs. Doe has the technical know-how sufficient to cover up his / her cyber-tracks. Although that is not a common scenario (as most anonymous online defamers lack the technical sophistication to completely cover their tracks), it can happen and you may not be able to determine the defamer’s identity. In such cases, you may still have some legal recourse.

For one, you can get an injunctive order from an Ontario court, ordering Mr. / Mrs. Doe to remove the defamation from the web. The benefit of such an order is that the website operators or Internet service providers that host the defamation may remove the defamatory postings from their websites. In some cases, you may even get the search engines (i.e., Google, Yahoo! and Bing) to remove the defamation from search results containing your name. You may even take it one step further and request that a removal order be made directly against the website operators or Internet service providers.

Or, if you prefer, you can sue Mr. / Mrs. Doe for damages in defamation. That is exactly what Tycho Manson did in the recent case of Manson v. Doe. Mr. Manson was a lawyer and the Director of Legal Affairs at Quebecor Media Inc. Mr. Manson was defamed online by an anonymous blogger. After several failed attempts to identify Mr. / Mrs. Doe, Mr. Manson brought a motion for judgment in defamation and was granted the total of $200,000.00 in general, punitive and aggravated damages against Mr. / Mrs. Doe.

It is questionable whether Mr. Manson will ever be able to collect on such judgment. However, as is the case in most defamation actions, it is less about the money and more about the vindication of the plaintiff’s reputation. The decision makes it clear that there are limits to freedom of expression. A person should not be allowed to avoid liability for defaming another because her or she are sophisticated enough to cover their cyber identity. Mr. Justice Goldstein’s put it quite eloquently in his decision:

There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about a reputable member of the public and then hides behind the electronic curtain provided by the Internet. The Defendant confuses freedom of speech with freedom of defamation. There are, undoubtedly, legitimate anonymous Internet posts: persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The Defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none.

Maanit Zemel, Partner
Miller Thomson LLP

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security.
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