In the recent decision of the Ontario Superior Court of Justice, Theralase Technologies Inc. v. Lanter, 2020 ONSC 205, (“Theralase Technologies Inc.”) the court granted judgment in libel against anonymous and unidentified bloggers.
In his reasons, Justice Myers held that the court has jurisdiction to grant judgment against unidentified defendants, despite the fact that the plaintiffs and the court do not know the defendant’s name, for defamatory statements published on the internet, “where a form of service can reasonably be expected to bring court proceedings to the attention of an unidentified defendant at whom the litigation finger has been appropriately pointed…”
While noting that nothing in the Rules of Civil Procedure anticipates final judgments being granted against unidentified defendants, because civil proceedings generally involve claims and judgments in personam (against a person), the court observed that there are many cases started with placeholder names like “John Doe” pending the identification of the actual defendant before final judgment issues.
Justice Myers described that counsel could locate only one precedent in Ontario specifically granting a final judgment against an unidentified party, namely Manson v John Doe, 2013 ONSC 628, 114 OR (3d) 592, where the defendant was an anonymous blogger, and Justice Goldstein granted judgment against the defendant who was identified only by a user name or pseudonym.
“There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about a reputable member of the public and then hides behind the electronic curtain provided by the Internet.”
The reasons of Justice Goldstein included this condemnation of anonymous internet defamation:
“There are few things more cowardly and insidious than an anonymous blogger who posts spiteful and defamatory comments about a reputable member of the public and then hides behind the electronic curtain provided by the Internet. The Defendant confuses freedom of speech with freedom of defamation. There are, undoubtedly, legitimate anonymous Internet posts: persons critical of autocratic or repressive regimes, for example, or legitimate whistleblowers. The Defendant is not one of those people. The law will afford his posts all the protection that they deserve, which is to say none.”
Justice Myers described the decision of the Supreme Court of the United Kingdom in Cameron v. Liverpool Victoria Insurance Co Ltd.,  UKSC 6 as the most authoritative pronouncement on the issue of whether judgment in personam can be granted against an unidentified defendant:
“There is no doubt that a claim form may be issued against a named defendant, although it is not yet known where or how or indeed whether he can in practice be served. But the legitimacy of issuing or amending a claim form so as to sue an unnamed defendant can properly be tested by asking whether it is conceptually (not just practically) possible to serve it. The court generally acts in personam. Although an action is completely constituted on the issue of the claim form, for example for the purpose of stopping the running of a limitation period, the general rule is that “service of originating process is the act by which the defendant is subjected to the court’s jurisdiction”: Barton v Wright Hassall LLP  1 WLR 1119, para 8.”
The court in Theralase Technologies Inc. held that while not expressly mentioned in the rule, in granting substituted service the Ontario court, too, will generally be concerned to ensure that the method of service proposed has “some likelihood of informing a defendant of the proceeding; otherwise, the exercise of obtaining an order for substituted service is a charade…”
Justice Myers concluded that:
” Therefore, provided that the plaintiffs prove their entitlement to judgments as claimed, judgment can issue against the defendants in the pseudonyms set out in the title of proceedings”
but noted that:
“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.“
If you have a claim against anonymous authors of internet publication, please do not delay in contacting Gilbertson Davis LLP for an initial consultation.