I was reading a write-up in the latest issue of Law Times that reported a decision of Madam Justice Pepall of the Ontario Superior Court back on August 9. It’s an interesting decision for a couple of reasons – but with a common thread. The gist of the case is that someone decided to write blog posts about a lawyer who didn’t like what was being said about him (exactly what was said isn’t set out in the decision) and he turned around and sued. This decision related to a motion to: (i) approve of service by e-mail; (ii) to grant an injunction to restrain the publication of the blog; and (iii) to force the blogger and others to reveal their identities.
Justice Pepall’s decision can be found here.
Her Honour granted the relief sought and ordered both the injunction and the requirement for the blogger to reveal his/her identity. Central to this latter part of the Order was the fact the Court held that anyone who was publishing defamatory statements on the Internet, with a possible exception for those commenting on political matters, had no reasonable expectation of privacy and thus could be compelled to reveal his/her identity. This also serves as a reminder to everyone to really think about what is being said before it is put into writing – whether in a blog, an e-mail or even just plain old pen and paper. Yesterday’s “flame war” on a forum can be tomorrow’s defamation lawsuit.
The final issue was that of service by e-mail. At the outset I should mention that with a few limited exceptions, the Rules of Civil Procedure haven’t quite made it to the 21st Century yet. Generally speaking, service via e-mail is one of the areas where the Rules haven’t caught up yet – although such service is permitted in some instances when the e-mails are between lawyers. In this case, the blogger had given a Gmail account and the plaintiff had sent the motion materials for the injunction to the blogger via e-mail. The blogger responded by saying that he/she had received the e-mail but didn’t receive the attachments. It was clear, though, that the blogger was trying to be cute. Justice Pepall didn’t buy it and found that the blogger had received sufficient notice of the motion that he/she could have tried to get the attachments if he/she wanted and that therefore the service via e-mail, even though it didn’t meet the full requirements of the Rules, was sufficient to be validated.
The common feature among the decision – sometimes it pays to shut up. If the blogger had kept his/her mouth (keyboard?) shut and not made the defamatory comments, then he/she wouldn’t be stuck in this lawsuit in the first place. Meanwhile, if he/she hadn’t responded to the e-mail serving the motion record then Madam Justice Pepall would have had more concern about granting the Order since she would have been worried that the blogger had no idea that the motion was being heard.
Beyond this, though, one should also give thought to the concept that it pays sometimes to shut up in a slightly different light. In the example of this case it is what the blogger said about the lawyer (that is, another person) that gave rise to legal problems for the blogger. However, in another case one’s own comments could come back to haunt you. As an example, a relative of mine was mentioning to me yesterday the situation of a person who posted to a forum that my relative frequents. This person gave numerous types of personal details about the person’s approach to parenting. One of the forum participants thought that these comments were examples of improper parenting. The person had given sufficient personal information over a series of posts such that the other participant was able to determine who the person was and then make a complaint to the local children’s aid society about the person. The children’s aid society investigated and found nothing improper. However, the reality with children’s aid societies is that if a second complaint is ever made against this person then the automatic presumption is that “where there’s smoke, there’s fire”. (How do I know? I had a similar case where a complaint was made against one of my clients to a children’s aid society that was ultimately dismissed by the CAS but because it had been a second complaint – the first one being an unsupported “anonymous” complaint that had been quickly investigated and determined to be unmeritorious – it was much harder to satisfy the CAS that there wasn’t a problem.) In this case, it was the person’s own posts to the forum that resulted in the person having to deal with the CAS – in other words, this person’s own words came back to haunt him/her.
Something to think about – and seriously consider whether sometimes it just might be better to shut up than to say anything.