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Norwich Orders and Defamation on the Internet

Posted On: April, 29 2019

Online defamation is an unfortunate reality for many businesses and individuals. Negative online reviews can deter customers away from a business; undermine employee morale; and divert resources to respond to defamatory commentary. Similarly, for individuals, online defamation has the potential to cause hurt feelings, embarrassment and lasting damage to one’s professional reputation.

A person defamed online by identifiable parties has the right to sue the person responsible for the defamation to claim damages and possibly other court-ordered remedies. But what options are available to someone targeted by defamatory statements published anonymously? If the target of defamation does not know the identities of the defamers, is he or she out of luck? Not necessarily.

The identities of anonymous authors of defamatory online reviews or messages may be discovered in appropriate circumstances through a legal mechanism known as a “Norwich order”. Named after the 1974 House of Lords decision Norwich Pharmacal Co. v. Customs and Excise Commissioners, a Norwich order is a particular kind of court order which compels a third-party to disclose information within its knowledge and control which is not otherwise available to the person seeking the Norwich order. In the context of internet defamation, Norwich orders have been used to obtain the internet protocol (“IP”) addresses and other identifying information of website, email and social media users.

To obtain a Norwich order in relation to internet defamation, the person applying for the order must satisfy the court of the following five-part test:

  1. The applicant must have a reasonable and good faith claim in defamation in relation to particular defamatory statements published online;
  2. The third-party, from whom the applicant is seeking the information, must be to some extent involved in the publication of the defamatory statements (for example, by administering a website used to defame the applicant);
  3. The third-party website administrator is the only practicable source of the information being sought;
  4. The applicant must have agreed before bringing the Norwich application that he or she will indemnify the third-party website administrator of any damages or costs that may result from it complying with the Norwich order; and
  5. Granting the Norwich order would be in the interests of justice in the circumstances.

Specific examples of courts granting Norwichorders in the context of internet defamation include:

  • A job search website was ordered to disclose the names, email and IP addresses of certain of its anonymous users who posted on the website defamatory reviews about a consulting company and its CEO: BeneFACT Consulting Group Inc. v. Glassdoor Inc., 2018 ONSC 3123;
  • Email service companies were ordered to disclose identifying information of certain pseudonymous email accountholders who defamed a condominium’s board of directors: Carelton Condominium Corporation No. 282 v. Yahoo! Inc., 2017 ONSC 4385;
  • An email administrator and two internet service providers were ordered to disclose IP addresses and other identifying information associated with anonymous email accounts which delivered defamatory emails about a recently appointed university dean: York University v. Bell Canada Enterprises (2009), 99 O.R. (3d) 695; and
  • Facebook was ordered to disclose identifying information belonging to certain of its users who had posted defamatory statements about municipal officials using pseudonymous Facebook accounts: Olsen v. Facebook Inc., 2016 NSSC 155.

These examples show that, in appropriate cases, a Norwich order may offer targets of online defamation a means to identify those responsible for defaming their business or reputations and, to this end, a path to obtaining a legal remedy.

We encourage you to contact Pinto James LLP for further information relating to defamation law, cyber-defamation, or bringing court proceedings to obtain Norwich Orders.

 

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