MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

276 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
1. Uncovering the Unknown Defendant: Defamation
In most civil actions, the parties are known at the onset of an action; a
plaintiff will know the identity of another driver in a collision or an exspouse
in a family dispute. However, as the internet allows individuals to
create a social networking account under a false name, it is easier for a
person to post libellous content anonymously. In cases where a statement
or post is clearly defamatory or a profile is clearly false, users may report
the content and the company may voluntarily remove a post or block an
account. In the US, social networks are protected from being held liable
for content by the Common Decency Act, 241 which limits their duty to
monitor content.
When an individual decides that defamation made on a social
network is sufficiently harmful to warrant litigation and the identity of the
person uploading libel is not readily apparent, an individual may need to
rely on a discovery process. The plaintiff would need to start an action and
request a court order to obtain subscriber information and IP address
from a social networking company. A second court order might then be
required from a Canadian Internet Service in order for them to pair the IP
address with a physical address. Handling cross border defamation cases
can be costly, and will generally require legal resources in both
jurisdictions to obtain the identity of an alleged defamer. In Canada and
the US, the legal tests needed to uncloak an anonymous individual are
similar; both set a high evidentiary threshold to prove that defamation has
occurred.
On the Canadian side, social networking companies and internet
providers will generally require a production order before they will release
any information. In AB v Bragg Communications, 242 a Nova Scotia court
considered a defamation case in which a phony Facebook profile was
created by an unknown perpetrator for the sole purpose of embarrassing
the plaintiff. The court ruled that a production order would be issued only
if there were no other means by which the plaintiff could obtain the
information. The fact that the Facebook page was anonymous satisfied
241
US, Communications Decency Act of 1996, 47 USC § 230. Section 230(c)(1) provides
immunity to providers of interactive computer services from materials posted by users
of their site.
242
AB, supra note 147.