The Court Comes to the Internet

By Julian Porter

The internet, with all of its garrulous irascibility has finally reached the courts in Canada. As we know, the interent is different from traditional journalisim where one side, the newspaper or television station, usually clobbers a person who doesn’t really have a realistic shot at a reply.

This case (cited Griffin v. Sullivan, 2008 BCSC 827) was decided in the British Columbia Supreme Court on July 15, 2008. It brings a scenario of plaintiffs and defendants and others being involved in a no holes barred brawl in the natural environment of a controversial chatroom.

The case is important for two reasons:

  1. it illustrates that with the inter-reaction of a plaintiff and defendant in a chatroom both sides contribute to the end libel. The plaintiff in this case in fact libelled the defendant on more than one occasion in the chatroom and yet the court found the defendant’s libel to be far worse; and
  2. the judge’s order at the end of the trial mirrors all the complexities of trying to enforce conduct on the internet.

Both the plaintiff and the defendant were members of a group of persons (perhaps as many as 100) who regularly posted messages to the Usenet website known as “ASH”. Generally speaking, the persons in this group had experienced or were experiencing thoughts of committing suicide, and they would discuss their problems and seek support from other members of the group. For the most part, these persons did not publish their real names, nor give their addresses or telephone numbers.

The plaintiff was 43 years of age and a citizen of Australia, living in Sydney. He made postings on and communicated with other members of the Usenet group ASH, and became embroiled in a vicious dispute with several of the members of ASH, including the defendant.

Some people identified themselves in their postings, but most used a pseudonym. The plaintiff used the pseudonym “Magnus Pym.” The people who posted messages to ASH were either depressed or suicidal or both. Many of the messages disclosed highly confidential personal feelings. Many of the postings used language of extreme profanity to respond to messages sent by other members of the group, and to make accusations and counter-accusations against other members of the group. The plaintiff testified that it was extremely important to him that his identity be concealed.

The war of words escalated when the defendant published the plaintiff’s personal information and identified him as being “Magnus Pym.” By February 17, 2004, the plaintiff had obtained the name and address of the defendant, namely: Patrick Michael Sullivan of Nanaimo, BC.

Besides libel, the plaintiff pleaded breach of privacy, a cause of action that exists because of the B.C. Privacy Act.

The plaintiff testified that he had been involved in posting to ASH for a number of years off and on. He described this website as having been set up for persons who were feeling depressed and suicidal to discuss their problems, to vent their negative feelings as a safety valve and to attempt to gain some relief from their condition. He said that the group consisted of about 50 to 100 regular users and up to perhaps 500 persons who visited the website on less frequent occasions.

The statements published by the defendant accused the plaintiff of having committed numerous acts of immoral and criminal conduct, and of being a person of the worst possible character. He also accused the plaintiff of being mentally unsound. The language used by the defendant to convey these meanings was often profane in the extreme. His statements were meant and understood to mean that the plaintiff was a sadist who liked to see young girls cut and bleeding and who offered to help a woman to commit suicide by cutting her throat.

The defendant published the defamatory statements not only on the ASH website, but on other news groups and internet websites. The countless repetitions of these postings and the “links” to these postings are so vast as to stagger the mind. As stated by the majority in Barrick Gold Corp. v. Lopehandia 2004 CanLII 12938 (ON C.A.), (2004) 71 O.R. (3d) 416 (at paragraph 1):

The internet. . .enables individuals. . . to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. . . the internet is also potentially a medium of virtually limitless international defamation.

Mr. Justice Blair’s description of the internet in the Barrick case (above) creates a whole new kind of libel which is both limitless and terrible. It may not be so but that’s now going to be the perception of libel on the internet. In every case up will pop Barrick.

Justice Halfyard found that a permanent injunction was required in this case. His final order, having given victory to the plaintiff, shows the great complication of the internet and I set out his order because it expressly grapples with the problem that faces all plaintiffs’ lawyers:

[120] In my view, the wording of the injunction must be very broad, having regard to Mr. Sullivan’s propensity for using many different identities, nick names and internet addresses. There is also evidence that he has used “anonymous re-mailers,” which is a device for posting a message on the internet that cannot be traced back to the original sender. Mr. Sullivan raised the objection that if the injunction purports to prohibit the use of anonymous re-mailing, he might get blamed for something that he did not do. The defendant further protests that some of the people who support him in his campaign against the plaintiff may have published or will in the future publish defamatory material about the plaintiff for which he will be blamed. The existence of these risks cannot be denied, but I think they are risks to which the defendant must be subjected. The law of civil contempt requires proof beyond a reasonable doubt, and I think this will provide sufficient protection to Mr. Sullivan from wrongful accusations.

[121] Accordingly, I order that the defendant, by himself, his agents, servants or otherwise be restrained from publishing, or causing to be published, on the internet or by any other method or medium, any defamatory statement referring in any way to the plaintiff, whether by name, pseudonym, address, photograph or other means of identity. The order will prohibit the defendant from publishing or causing to be published any such statement in his own name, in the name of any nick names, pseudonyms, or aliases that he now uses, has used, or may use in the future. The defendant is further prohibited from publishing or causing to be published any such statement about the plaintiff, anonymously, or in the name of another person.

[122] It is my intent that the order will prohibit Mr. Sullivan from using the device or technique of “anonymous re-mailing” to publish or republish any defamatory statement of or concerning the plaintiff.

Justice Halfyard awarded damages to the plaintiff as follows:

a. General damages for libel $100,000.00
b. Aggravated damages for libel 50,000.00
c. Damages for breach of privacy 25,000.00
d. Special damages 4,644.50
Total $179,644.50

The case was defended by Mr. Sullivan personally and he appeared to be obstreperous. As in all of these types of cases one wonders if the judgment will ever be enforceable.

This article originally appeared in Legal Alert (Carswell).