Defame Game Serious in Canada

By Charles Mandel, Wired News, 14 September 2000, 3:00 a.m. PDT

EDMONTON, Alberta: Canadian e-mailers can no longer hide behind a cloak of anonymity if reasonable grounds exist to show they've distributed defamatory statements over the Internet.

The change in Canadian law came after a landmark court ruling this week when an Ontario Superior Court Justice ordered Internet service provider iPRIMUS Inc. of Toronto to reveal the identity of an anonymous e-mailer.

The e-mailer is alleged to have defamed George Irwin, the president of Irwin Toys Ltd., Canada's largest toy manufacturer.

In August, the e-mailer circulated an email to about 70 employees of the company criticizing George Irwin. The e-mail also included as an attachment a number of confidential company files.

Randy Pepper, a litigation partner with the Toronto firm of Osler, Hoskin & Harcourt and Irwin's lawyer, filed a statement of claim for general, punitive and aggravated damages worth CN$1.5 million in August. However, after the email address turned out to house an alias, Pepper turned to the courts for recourse.

Justice John Wilkins' ruling specifies that reasons to compel an ISP to give up the identity of an anonymous emailer must go beyond a spurious statement of claim, and that the plaintiff must demonstrate a legitimate reason for obtaining a court order.

Robert Belliveau, vice-president of external affairs for iPRIMUS, called Wilkins' court ruling balanced. "I don't think his judgement is unreasonable," Belliveau said.

He wouldn't comment whether the e-mailer's account was still active, but did say the company would not take any action itself because it might be construed as making a judgement. "We're not in the business of exercising such judgement," he said.

Belliveau dismissed any idea that Canadian ISP customers might be concerned over the ruling. "I think Internet subscribers generally can rest assured that their anonymity and their confidential customer data will remain such until such time as disclosure is warranted."

Not everyone is reassured, however. David Renardson, a spokesman with privacyX.com, called the ruling worrisome. Vancouver, British Columbia-based PrivacyX.com provides an encrypted, anonymous email service to some 65,000 customers.

Renardson said he's concerned that e-mail users might have their identities revealed without any notice from ISPs. "There's a warrant there, but I feel uncomfortable that there's a kind of unreasonable search and seizure here that you have no notice of," he said.

Belliveau confirmed that iPRIMUS did not inform the subscriber of its decision to comply with the court ruling and hand the individual's name over to Irwin's lawyers. "It's not in our terms of condition," he said.

Pepper bristled at the notion that e-mailers should be able to stay anonymous. "I don't see why someone should be able to hide behind a mask and then effectively break the law," he said. "How possibly can that be condoned in a civilized society?"

The change to the Canadian law brings it more in line with other jurisdictions. In the United States, probable cause must be determined before a court order will be issued. As in Canada, ISPs do not need to inform the client they are passing along information.

Ari Schwartz, a policy analyst at the Washington-based Center for Democracy and Technology, said currently in the U.S. the offline standards for defamation are applied to the Internet. "Right now, there's very little protection for the individual," he noted.

In the United Kingdom, following a case involving the ISP Demon Internet, the law now states that an ISP may be held responsible itself if it refuses to delete defamatory postings from BBSs.

"My expectation would be the law in Ontario would follow the law in the U.K, because our libel and slander traditions are closer to the English law than (they are) to U.S. law," Pepper said.

Reg Whitaker

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