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Leading Law Firm Initiates Legal Action over Anonymous Online Posting
The ability to remain anonymous is one of the Internet's great attractions, but it is also the root of one of the Internet's most troubling questions: when and how should the identities of anonymous Internet users engaged in allegedly harmful or illegal activities be disclosed? This question has come up again, this time in respect of an anonymous posting on an a website. The posting (allegedly very offensive) relates to a staff member at the international law firm Shearman & Sterling LLP, and was e-mailed to that staff member's work account.
Like many businesses in this situation, Shearman has launched a "Jane Doe" action against the poster (who is believed to be a former or current Shearman employee). In respect to potentially defamatory online postings, plaintiffs typically bring an action for defamation, then use subpoenas and other methods to try to ascertain the defendant's true identity. Shearman, however, is focusing on the e-mail that was sent rather than the posting itself and has claimed trespass and breach of contract with respect to that e-mail. First, Shearman alleges that by sending the offensive e-mail to the staff member's work account, Jane Doe "deliberately and wrongfully misused and caused the continuing misuse" of Shearman's Internet resources. Second, says Shearman, Jane Doe breached a contract not to use Shearman's Internet resources, or to cause someone else to use them, for receiving, delivering or storing abusive, harassing or hateful e-mail.
In similar cases in the U.S., judges have held that giving injured parties a forum for addressing grievances must be balanced against the "legitimate and valuable right" to participate in on-line forums anonymously or pseudonymously.
ISPs, who are caught in the middle of such disputes, typically insist that due process be followed (i.e., subpoenas) before revealing customer information, and commonly alert customers who are subject to a subpoena. Such customers then have an opportunity to respond and to attempt to quash the subpoena.
How online anonymity issues will be resolved in Canada remains uncertain. In 2004, the Federal Court dismissed an application by the Canadian Recording Industry Association (CRIA) to compel ISPs to reveal the identities of customers who traded music files, on the basis that CRIA had not established that the ISPs were the only practical source for determining the identities in question and had not demonstrated that the public interest in disclosure outweighed the relevant privacy concerns. However, an earlier decision from the New Brunswick Court of Queen's Bench relied on the New Brunswick Rules of Court to require disclosure of the identity of an Internet account holder who had circulated confidential information by e-mail.
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