Included in Discovery: Atlantic Education & the Law – Issue 12

By Jon O’Kane & Emma Douglas

These days it seems no one is immune from the threat of anonymous keyboard warriors posting untrue and problematic content online. Social media and other platforms can attract a particularly bothersome breed of bad actors, empowered by their perceived anonymity to write salacious content for the purposes of their own entertainment.

We’re certain you can picture the situation.

Imagine your university posts an optimistic scholarship announcement on Facebook and, despite the carefully curated messaging developed by your communications department, someone comments beneath the post complaining and, in doing so, misrepresents the cost of tuition or the availability of financial aid.

Or, equally as frustrating, imagine one of your most esteemed professors being wrongly disparaged by an anonymous student on ratemyprofessors.com.

These examples may seem benign; however, what if the content is worse? What would and could you do if an anonymous poster wrongly accused someone at your university of committing a crime such as fraud or assault?

It would be discouraging to feel like you are left without recourse. Online “trolls”, disguised by their cloak of anonymity, can make defamatory comments and seemingly evade detection. However, courts are adapting with the times and repurposing longstanding equitable doctrines from other contexts to find modern solutions to online problems.

Solution: A Norwich Order

A defamation lawsuit is the legal mechanism through which a court is required to consider whether or not a statement is truthful and, if it determines that someone has published falsehoods to your detriment, it can award damages. In the case of online defamation, though, parties are often met with the practical roadblock of being unable to identity the defaming poster. How can you possibly sue someone if you do not know who they are?

Bring on the Norwich Order! A Norwich Order is a decades-old equitable doctrine designed to compel someone to disclose the identity of another party a plaintiff seeks to sue. The namesake of the doctrine is the UK House of Lords decision in Norwich Pharmacal Co. v Customs and Excise Commissioners (1973), [1974] AC 133, which considered a patent infringement claim against an anonymous party whose identity was only known by the respondent government entity. The House of Lords agreed that it would be inequitable to allow someone to evade liability purely by reason of anonymity, and ordered the respondent to provide information to the claimant so that it could sue its intended defendant.

Though originating in the setting of intellectual property infringement, a Norwich Order is a flexible mechanism that can be applied to compel the production of identifying information of any anonymous wrongdoer, so long as the following criteria are met:

• the applicant has shown a valid, bona fide or reasonable claim (such as a claim in defamation) against the anonymous individual;
• the applicant has established that the third party from whom information is sought is somehow involved in the acts complained of;
• the third party is the only practicable source of the information; and
• the interests of justice favour the obtaining of disclosure from the third party.

We note that in some jurisdictions, like New Brunswick, legislatures have codified similar mechanisms in their rules of civil procedure.

In the context of anonymous online defamation, a Norwich Order can compel innocent third parties (such as the owner of a social media website) to provide the relevant information (such as an individual’s identity or IP address) so the applicant can commence a lawsuit against the defamatory poster. These respondent online platforms are not, themselves, under scrutiny for the wrongdoing; rather, they are merely necessary participants in an effort to retrieve identifying information. Without disclosure, an applicant may never learn the identity of the wrongdoer behind the defamatory statement – effectively extinguishing one’s ability to bring an action and curtailing the truth-seeking function of a trial.

Norwich Orders in Action

To highlight how this plays out in real-life situations, we note two recent Atlantic Canadian cases where courts issued Norwich Orders for the disclosure of identifying information to plaintiffs seeking to bring actions for defamatory statements made online.

In Olsen v Facebook Inc., 2016 NSSC 155, a councillor and employee of a municipality discovered statements made on Facebook alleging that the municipal council was involved in fraudulent behaviour and conspiracy. These statements had been cleverly posted under pseudonyms, and the plaintiffs were determined to hunt down the true identities of those behind these harmful statements. Facebook was the only source of such information. As such, the plaintiffs turned to the courts. Thanks to a Norwich Order, the Nova Scotia Supreme Court ordered that Facebook release identifying information. At paragraph 25, the Court stated:

[…] internet anonymity cannot be used to shield people who unfairly damage another’s reputation from being held accountable.

More recently, in Losier v RateMDs, 2021 NBQB 264, it was brought to a physician’s attention that there were anonymous comments made on the website RateMDs.com, alleging that he was abusing Medicare and running a fraudulent charitable foundation. To clear his name, the physician had no other option but to retain a lawyer and seek disclosure of the anonymous author’s identity. In ordering disclosure, the New Brunswick Court of Queen’s Bench stated at paragraph 31:

In today’s world of social media and the ability of individuals to post comments anonymously on websites of every description it is important that authors of such commentary be held accountable when their posts cause harm to others. Individuals who would seek to cause harm by potentially defaming others under the guise of anonymity should not be able to do so with impunity.

An Old Tool with Modern Uses

In the age of social media, you are bound to encounter potentially defamatory content online that can harm your institution’s reputation. Depending on the egregiousness of the defamation, inaction may not be a practical option for you. Sometimes there will be no choice but to set the record straight.

In university settings, Norwich Orders have the potential to be a valuable tool, as the mechanism provides you the ability to fight back against anonymous online trolls and take back power over your reputation. Should you ever find yourself in such an unenviable situation, please do not hesitate to contact us to discuss your options.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors.

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