[Devonyu / Dreamstime.com] Click here to see full sized version.

On the heels of a recent New York state court decision that ordered Google Inc. to reveal the identity of an anonymous blogger in a defamation suit, a Winnipeg business lawyer has asked the California-based online search engine giant to do the same and out a blogger on behalf of an Ottawa-area resident.

Brian Bowman, a partner with Pitblado LLP in Winnipeg who specializes in privacy, access to information, online reputation management, intellectual property and technology matters, says that his client was defamed on a site appearing on Google-operated blogspot.com (also known as Blogger.com).

Zeromeanszero.blogspot.com, which takes its name from Ottawa Mayor Larry O’Brien’s 2006 election pledge not to raise municipal taxes, directs most of its city hall-related vitriol at him. But it also takes shots at others, including Bowman’s client, who, he says, has been “significantly damaged by the content posted about him or her.”

For now, the client’s identity remains a mystery (it’s not the mayor, Bowman emphasizes), as in the case of the one or more anonymous people (posting as “Jane and John Smith”) behind the Zeromeanszero blog.

Bowman has not begun any formal court proceedings. But he has initiated discussions with Google in an attempt to have “certain content” removed and to reveal the identity of the blogger or bloggers. That could lead to a class-action suit involving others who feel they’ve been defamed by the blog.

Bowman says the U.S. decision in Cohen v. Google (Blogger) bolsters his client’s position by directly addressing the increasing trend of anonymous people posting defamatory remarks about others.

In mid-August, the New York State Supreme Court granted a petition for pre-action discovery by 37-year-old Canadian-born model Liskula Cohen to order Google and/or its subsidiary, Blogger.com, to identify the person or persons who, a year earlier, posted five different weblogs, entitled “Skanks of NYC,” which are no longer online.

Cohen argued the blog contained defamatory statements, including “skank” and “ho,” that concerned her appearance, hygiene and sexual conduct, impugned her chastity and were “malicious and untrue.”
Justice Joan Madden agreed.

Those words “carry a negative implication of sexual promiscuity, and as such are reasonably susceptible of a defamatory connotation and are actionable,” she wrote in her recent decision. “The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by [the Internet] can be made to answer for such transgressions.”

Google complied with the court order and revealed the anonymous blogger to be Rosemary Port, who is reported to be a 29-year-old Fashion Institute of Technology student who knows Cohen and has threatened to sue Google for US$15 million for failing to protect her identity. (Cohen has reportedly since dropped her US$3 million damages suit against Port.)

The New York court decision and the Canadian case raise “one of the fundamental legal questions of our time over the appropriate balance between legitimate, anonymous Internet speech versus the right for people to protect their reputations,” says Bowman, who expects more of these situations will emerge in the near future. “Hopefully, we will see more case law develop in this area, and also increased guidance for people when making online posts.”

However, as Bowman points out, online anonymity can have some “really good public policy benefits” — for example, for reporting child pornography or protecting whistleblowers. And there are fair-comment provisions under Canadian law that enable people to voice their criticism of public figures without revealing their identity.

However, Bowman says Cohen distinguished between whether a blogpost was a statement of fact or an opinion. The derogatory statements made about Cohen were “assertions of objective fact that, if proven false, could form the predicate for a defamation claim,” Madden wrote. In her decision, she referred to an earlier case (Steinhilber v. Alphonse, 68 NY2d 283, 290 [1986]) in which determining whether a statement expresses fact or opinion is a question of law for the court to resolve “on the basis of what the average person hearing or reading the communication would take it to mean.”

As Bowman explains: “When something posted is purported to be fact and is not true, and the comments disparage someone’s reputation, that falls clearly in the realm of defamation.” He says the postings related to his client “go well beyond” what would be protected by free speech and “make factual statements that we don’t think can be backed up in fact.”

Should Google not ultimately comply with Bowman’s demand to disclose the identity of the person or persons posting statements about his client on the blog, he has a remedy in Canada by way of a Norwich order, says intellectual property litigator Ron Dimock, a partner with Dimock Stratton LLP in Toronto.

The court order — a form of a pre-action discovery — derives its name from Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133, a House of Lords decision that allows an applicant to compel a third party to provide information to determine the circumstances of wrongdoing and to be able to pursue remedies.

“If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers,” wrote Lord Reid in Norwich.

Dimock explains that even if the identity of someone making defamatory online statements is unknown, an action can be commenced against that person to stop the postings. He took that route as co-counsel for the plaintiffs in BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241, in which BMG and other recording industry companies sought disclosure from five Canadian Internet service providers of the identity of customers alleged to have infringed copyright laws by illegally file sharing more than 1,000 downloaded songs.

The Federal Court denied the motion, in part because the ISPs were not the only “practical source of information” (music downloading-software available on the web was also involved) and because public interests favouring disclosure did not outweigh “legitimate privacy concerns.” A year later, the Federal Court of Appeal upheld the lower court decision on the issue of privacy.

Still, ISPs can link IP addresses to customers, says Dimock, and anyone assuming they can hide their identity forever while posting defamatory statements on the Internet is mistaken.

“No one is truly anonymous,” says Dimock.