If a tree falls in the forest can anyone hear it? Can you lose in court if you are not there and no one knows who you are? The answer to the second question at least is now a definitive yes, thanks to a court decision from a few weeks ago (ok ok almost a month ago, I’ve been busy) in Ontario. Let’s dive in anonymously. Who said that?
So let’s say you are on the internet and use a pseudonym like, I don’t know, “HabsFan29”. You say some crap on the internet that is probably defamation. They can’t find you and sue you and win, right? Guess again, HabsFan29!
So the case from an Ontario court is Theralase Technologies Inc. v. Lanter. The facts are pretty straightforward. A bunch of people with internet handles including PINKOCAPITALIST2, BIONICJOE and NASTYNASTA said a bunch of crap on a website called stockhouse.com, which is some sort of site about stocks or something, who knows, what do I look like, a high finance expert? Anyway, the site has a bulletin board kind of deal (the “bullboard” which is unintentionally hilarious on a few levels) where you can post stuff about publicly-traded companies. One of those companies was Theralase, and some posters said some shit about the company and two of its executives who are also plaintiffs here. Though one of them, Roger, in 2018 “agreed to step down as an officer as part of a settlement with the Ontario Securities Commission concerning allegations that Theralase had not complied with its obligations to publicly disclose material facts on a timely basis and that it did not have a sufficiently robust compliance function”. Nice guy. Here’s a sample posting about Roger:
This doesn’t include the theif [ed. – sic] Roger being involved! Trump = Roger?????
Ouch! There was a lot of other crap too, lots of it worse than that. Anyway the company and the two executives wanted to sue for defamation, but of course everyone was anonymous and generally you have a hard time suing anonymous people. But not so hard anymore! It’s been a while that courts have allowed plaintiffs to serve anonymous defendants by email, or by direct message, etc. In Canada it goes way back to 2013, when Brian Burke wanted to sue anonymous people on the internet for defamation and served a bunch of anonymous people via direct message. So that’s nothing new, and the Court had no problem with the plaintiffs serving defendants by both email and direct message through stockhouse.com, which had been ordered by the court official called the “Master” (seriously, that is a thing).
Only one defendant (Lanter) replied to the service and showed up to court. Now, if you are served with court documents and don’t show up to defend yourself, the plaintiff can ask the court for what’s called a “default judgment”. Basically “the loser defendant did not have the balls to show up, you should say I win by default.” Just like in sports! Happens all the time. But it happens all the time with defendants who are known. Can it happen with defendants who are unknown? It can now!
See the problem is, to use a fancy legal Latin phrase, proceedings and judgments are usually “in personam” which means “against a person.” Is an anonymous person a person? The Court here goes through an analysis of whether an unknown person can have a judgment against them. There was only one previous case in Canada where it happened, but in that case the judge never really discussed the point, just said it was ok! This judge is not making that mistake. But there was a UK case, which did discuss the issue in detail, and this judge likes that UK decision very much and will just adopt it here! The key is the following:
Provided that the form of service utilized can reasonably be expected to bring the proceedings to the attention of a specific, identifiable defendant, the court has jurisdiction over that person however he or she may be identified.
In the UK case, there was no service on the unidentified defendant. Not true here! And for sure the proceedings would have come to the attention of the defendants. The Master made the right call:
In this case, each of the defaulting defendants was served at an email address provided by him or her to Stockhouse.com or through their website private messaging accounts on the Stockhouse.com site. I have no doubt that in authorizing this manner of service, the Master implicitly – if not explicitly – found that the statement of claim so served would likely come to the defaulting defendants’ attention. I agree…
So “accordingly the court has jurisdiction over them in personam.” Neat-o! The judge, having decided that he can indeed grant a default judgment against these anonymous defendants, then says well is there actually defamation here? Goes without saying. Defamation is pretty easy to show in Canada, as I explained back in 2013. And just ranting and raving and being informal like people are on the internet doesn’t save you:
informal, ranting style of writing used in internet postings should not be taken to mean that readers will not take the defamatory publications seriously. The evidence that some readers of the defamatory posts communicated with the company to express concerns is evidence that readers do put some faith in what might once have been considered childish or incredible writing styles
Good to know. So yes, there is defamation and the judge awards damages. He goes through each and every defendant and decides how much they should pay, which varies from a low of $15k to a high of $75k. The factors the judge looked at were the frequency of the postings, the content of the posts (“These posts are particularly pointed and nasty”; “this poster was deliberately disgusting and hurtful”) and whether the comments were about the company, one or two officers or all of them.
Now, you may ask yourself, ok great, plaintiffs win, but how are they going to enforce judgments against anonymous people? Good question! The judge seems to recognize it, but says fuck it, that’s not my problem:
How the plaintiffs will go about amending the title of proceedings for enforcement purposes once they identify one or more of the defendants is not before me. I make no findings about how any judgment is to be enforced against a person who is currently identified only by a pseudonym.
Superterrific Happy Hour Analysis Time
Watch your back, HabsFan29. Your email is easy enough to find.