Canada: Internet Defamation: Notice Of Claim Served Via Message Board

Last Updated: November 8 2013
Article by Karen R. Zimmer

Earlier this year, the British Columbia Supreme Court allowed a plaintiff, Brian Burke, to serve his defamation claim via the message board on which the defamatory publications were posted. Service was thereafter effective on the defendants in the names of their aliases.    

The Court recognized that the proposed method of service had not been the subject of any decision of the BC Court. Plaintiff's counsel referred Master MacNaughton to the Alberta decision of Knott Estate v. Sutherland, [2009] AJ No. 1539 (Alta. Q.B.), where Master Breitkereuz ordered service of a statement of claim and notice to a defendant by sending a notice of the action to the defendant's Facebook page. Master MacNaughton was also referred to the New South Wales decision of Mothership Music Pty Ltd. v. Darren Ayre (T-As Vip Entertainment and Concepts Pty Ltd.), [2012] NSWDC 43, where service of an injunction application was permitted by e-mail transmission and by Facebook, and the Australia decision of Bryne v. Howard, [2010] FMCAFAM 509 (Fed. Mag. Ct.), where service of a child support application was made via Facebook and other electronic means.

Master MacNaughton recognized that it would be possible to seek the identity of the publishers by applying for Norwich orders against the various internet service providers or the hosts of the message boards. However, the Court found that this would not be a cost effective means of discovering the identity of the defendants:

[19]      In this case, if Norwich Orders were granted and complied with, they would only yield the e-mail addresses provided by the Message Board Defendants when they opened their accounts as this is the only identification that is required to open such an account.  Slobberface registered for his account in 2004, the earliest date and Mbskidmore registered in April 2012. The e-mail accounts they, and the other Message Board Defendants, used when they registered may no longer be available. As a result, applications for service on those e-mail addresses would arguably be less effective because there is more likelihood of the proceedings coming to the attention of the Message Board Defendants on an active message board account.

[20] In addition, given the number of the Message Board Defendants, all of whom posted the allegedly defamatory statements on different message boards, proceeding in this manner would be lengthy, and time consuming. While these factors alone would not be sufficient to meet the test of impracticability, the fact is that proceeding in that manner may also be ineffective because it is unlikely to yield any more certainty of notice than the currently proposed method. 

[21] In my view, it is reasonably likely, or probable, that notice of the proceedings will come to the attention of the Message Board Defendants by the proposed method. ...

The Court had before it evidence of the frequency with which the defendants posted on the message board. The number of posts ranged from 137 posts for "Mbskidmore" to a high of 13,044 for "Slobberface".

What happened with respect to the claims against these anonymous publishers? We searched the Court file out of interest. The Plaintiff has obtained default judgment for damages to be assessed against "Nofixedaddress", "Lavy16", "Tulowd", "Naggah", and "Cambarkerfan." Obviously, enforcement issues will arise.

The claim appears to continue against at least two named defendants whose identity became known to the plaintiff. One of the defendants apparently revealed their alias in a newspaper article, and another revealed his alias when advertising his lawn care services.

See link to decision: Burke v. John Doe #1 to #18 et al., 2013 BCSC 964.

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.

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Karen R. Zimmer
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