In court proceedings, an anonymous defendant can present a
serious problem: What defendant should be named? Who must be
served? The prevalence of online anonymity has brought these issues
to the forefront for litigants addressing online wrongs.
Fortunately, there are tools that our courts have adopted, and
adapted, for the online world.
Even anonymous actions leave a trail
Often the first challenge is finding out who is responsible for
a defamatory comment or posting of copyright protected materials.
Identifying a defendant, after all, is the foundational step in
commencing a claim. While comments or postings may not have a name
attached, that does not mean that no identifying information
The typical unique identifier tied to online conduct is an IP
address, which is "a numerical number attached to each
The record that ties a specific IP address to online conduct is
normally retained by the operator of the online forum – for
example, Twitter, Instagram or Facebook. The record that ties an
Internet subscription to an IP address, however, normally rests in
the hands of an Internet service provider, like Bell or TELUS.
Matching online conduct to a point of access therefore normally
requires disclosure from both such non-parties.
The Norwich Pharmacal cure
Orders to obtain such information in the online context have
drawn from the Norwich Pharmacal test, which has developed to
address pre-action discovery, and has been applied to IP addresses
in BC2 , and in the Federal Court3 .
Obtaining an order requires demonstrating:
a bona fide claim exists;
the information is required in order
to commence an action;
the third party is the only
practicable source of the information;
there is no immunity from
a relationship exists with the
defendant in which the third party was mixed up in the
disclosure by the third party will
not cause the third party irreparable harm; and
the interests of justice favour
granting the relief.4
Given this standard, pursuing a Norwich Pharmacal order requires
weighing the value of identifying a point of access against the
cost of pursuing such an application.
A "Substitute" Option – Online Service
Where the challenge is only serving a defendant, rather than
proving liability, substituted service may be a far more reasonable
alternative to a Norwich Pharmacal order.
When addressing online conduct, BC courts have permitted
substituted service to be done via online channels, normally
through the medium used to commit the wrong, such as a private
message sent through a webboard.5 Service has even been
permitted through Facebook6.
Given that the goal of personal service is certainty7
, it stands to reason that where a defendant has chosen that mode
of communication, such service would provide at least as much
certainty as more traditional substituted service methods.
Of course, in the background in any claim for online conduct is
the problem of jurisdiction.
While jurisdiction over online conduct may be difficult to
assess, BC courts have provided some helpful guidance on when a
claim or litigant are subject to our court's orders, including
the decision in Equustek Solutions Inc. v. Google Inc.,8
which concluded territorial jurisdiction may result from online
business activities conducted in BC, even without a physical
presence in the province.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).