A recent English case provides guidelines concerning when a court should order a website operator to disclose the source of defamatory material posted on a website.
The defendant owned and operated a website on which the fans of an English football club could post messages on matters relating to the club. The website was freely accessible to anyone with access to the Internet. Once a user registered as a member by providing an email address and password, they were required to provide a user name, invariably a pseudonym, to identify themselves when they made a posting. When an individual registered, they agreed they would not use the bulletin board to post any material which they knew to be false or defamatory.
The plaintiff wanted to bring libel proceedings against the individuals who had posted messages on the website and instituted an action against the website owner to require that it disclose the identities of the individuals who had posted the allegedly defamatory material. The website owner did not oppose the order sought but refused to consent and left it to the court to decide whether and on what terms to grant relief.
In situations similar to this, it is well established that the plaintiff must establish the following matters to obtain disclosure:
a- - wrong has been carried out or arguably carried out by the ultimate wrongdoer;
b - here must be need for an order to enable the action to be brought against the ultimate wrongdoer; and
c - the person against whom the order is sought must:
i - be mixed up in wrongdoing so as to facilitate it; and
ii - be able or likely be able to provide the information necessary to enable the ultimate wrongdoer to be sued.
Even if these conditions are satisfied, the court retains discretion whether or not to make the order. In this regard, it was said that a court must be careful not to make an order that unjustifiably invades the right of an individual to privacy.
The court considered the facts relating to all of the postings and granted the order sought with respect to the majority of the claims advanced. The English practice is that in granting such an order, the plaintiff must pay the defendant’s reasonable cost of the application and compliance with the order. The defendant sought 23,000 and was allowed 9,000.
Canadian practice with respect to such orders is similar, but the prospect of paying costs presents a substantial practical barrier.