Dalhousie University Schulich School of Law From the SelectedWorks of Robert Currie 2016 Cross-Cutting Conflicts: Developments in the Use of Norwich Orders in Internet Defamation Cases Prof. Robert J. Currie, Dalhousie University Schulich School of Law Available at: https://works.bepress.com/robert-j-currie/24/ Cross-Cutting Conflicts: Developments in the Use of Norwich Orders in Internet Defamation Cases - by - Robert J. Currie* Schulich School of Law Dalhousie University [to be published in Annual Review of Civil Litigation 2016, forthcoming] I. Introduction The act of anonymously maligning, accusing or criticizing an individual is one that has a long pedigree of ignominy. One finds it proscribed in literature, in song and in religious texts. Indeed, the entire common law system of legal procedure militates against it—as reflected in everything from the development of the hearsay rule (and the concomitant “right to face one’s accuser” that assumes such importance in US law),1 to the powerful aspect of the open court principle which dictates that litigants should, ordinarily, be publicly identifiable, to the simple requirement that an individual filing a civil action must be identified by their real name. The rationale is clear: anonymous and unsubstantiated accusation, criticism and rumour has the potential to work great mischief in the mind of the listener, and * Professor and Director of the Law & Technology Institute, Schulich School of Law, Dalhousie University. I am grateful to Professor Hilary Young for her comments on this paper. Thanks are due also to Sophie DeViller and Kaleigh Henry for excellent research assistance, and to the Foundation for Legal Research. 1 For discussion of the historical backdrop, see Ronald Delisle et al, Evidence: Principles and Problems, 11th ed. (Toronto: Carswell, 2015) at pp. 665-668. 1 Electronic copy available at: http://ssrn.com/abstract=2776176 the more widely it is circulated the more likely the damage resulting. Light, as it is said, is the best disinfectant. Yet there has always been a counterpoint at play that suggests a limited but important utility for the anonymous voice. Speaking in 1862 of what we now recognize as the privilege protecting journalists’ sources from disclosure,2 the editors of the London Review wrote: It is very well to say that every one ought to have the spirit and courage of a martyr; that he ought to be ready to denounce the abuses of a profession, a public office, a law court or any other institution in which the public have an interest, in his own name, and at the expense of incurring every sort of consequence; but men are not so made. Abuses will not, in fact, be brought to light unless some protection is afforded to those who give information…3 Thus we recognize the importance of the confidential informant, the anonymous whistle-blower and the person who calls “Crime Stoppers.” Some kinds of communications must be protected because their social importance or utility outweigh the feelings or interests of those whom they might disturb. Overlaid on this is the right to freedom of expression, constitutionalized by the Canadian Charter of Rights and Freedoms, which tells us inter alia that the ability of people to freely and unreservedly express their thoughts is not lightly to be interfered with; and the right to privacy, of which anonymity can be an aspect. The ability of individuals to lodge public commentary has obviously expanded exponentially since the beginning of the Internet era, in particular with the rise of social media as a cheap and easy means of expression that has the 2 See R. v. National Post, 2010 SCC 16; Globe & Mail v. Canada, 2010 SCC 41. 3 “Anonymous Journalism,” The London Review, Vol. IV, No. 79 (January 4, 1862), p. 7 at p. 8. 2 Electronic copy available at: http://ssrn.com/abstract=2776176 potential to reach a worldwide audience. This has, in turn, had profound effects upon the civil tort of defamation,4 if for no other reason than that it is much easier both to defame people via social media and to have potentially defamatory material brought to the target’s attention. One particular wrinkle has been the rise in anonymous commentary on the internet that is potentially defamatory—or that a target wishes to deal with by way of a defamation action. The latter distinction is an important one, as it brings into sharp relief the three-way tension between the social utility of anonymous commentary, the protection of freedom of expression, and the right of the individual to seek redress for unfounded injury to their reputation. Specifically, it enlivens the important trade-offs that must be made within the law of defamation—the court process should not be used as a means of suppressing unpleasant but protected speech, nor, except in appropriate cases, to peel away otherwise socially useful anonymity. Individuals sued in civil actions face the cold reality of what we now recognize as the “access to justice” problem, where access to meaningful legal assistance has been priced beyond the ability of most Canadians to pay. Faced with a well-resourced litigant who is willing to use civil defamation proceedings, or even the threat of them, a person making valid commentary might nonetheless choose to remain silent or retract comments made. In this way the increasingly-expensive civil court process can be used, inappropriately, as a sword rather than a shield, to chill and suppress valid dissent. A response to the increased amount of anonymous internet-based commentary has been an upswing in the use of the relatively obscure technique of 4 See Robert Danay, “The Medium is Not the Message: Reconciling Reputation and Free Expression in Cases of Internet Defamation” (2010) 56 McGill L.J. 1. 3 the pre-action discovery proceeding, particularly in its manifestation as what is often called a “Norwich order.” Discussed in more detail below, in the context of defamation this tool allows potential or actual plaintiffs to apply for a court order compelling defendants and/or third parties to disclose information they have which will help in identifying the potential defendant—often phrased as “unmasking” the commenter. This “unmasking,” if it was ever obscure, is so no longer but has lately been front-page news, as the current saga of allegedly-defamed Hollywood actor James Woods demonstrates.5 In Canada there has been a slow but sure increase in the number of such motions brought before the superior courts of the provinces, and while the case law has developed in fits and starts it has displayed some interesting features, including a mingling of constitutional values and civil litigation concepts which may, if perhaps accidentally, be re-shaping how Norwich orders are viewed. This paper will provide a combination of snapshot and analysis of an area of procedural law that is quite dynamic and whose evolution is uncertain. Part II will explain the nature and provenance of pre-action discovery and the Norwich order, then trace the development of their use in the internet defamation context, 5 In July 2015 Woods brought a defamation action against a John Doe defendant, a Twitter user whose handle is “Abe List,” due to unflattering tweets posted by List which referred to Woods as a “cocaine addict,” inter alia. Woods recently succeeded on an appeal of a motion to strike the case and, as “Abe List” is participating in the case via counsel, it appears he/she will be “unmasked” at some point. See Colleen M. Devanney & Jordan S. Cohen, “Actor Can Proceed with Twitter Defamation Lawsuit, Likely to Unmask Anonymous Twitter User,” Internet Defamation Removal Attorneys Blog (19 February 2016), online: < http://www.defamationremovalattorneysblog.com/2016/02/actor-can-proceed- with-twitter-defamation-lawsuit-likely-to-unmask-anonymous-twitter- user/#page=1 > 4 including consideration of what is still the leading case, Warman v. Wilkins- Fournier.6 It will also examine the “pure” procedural issues of the thresholds for obtaining the order and the potential for anonymization of proceedings. Part III will examine the interesting manner in which Charter values have begun to affect the template of considerations that courts take into account when evaluating whether or not to issue these orders. It will specifically look at how privacy has emerged as a sort of meta-value in the context of discovery generally, and how it has become something which courts are more openly weighing and of which they are becoming more protective. It will also analyze how the courts have treated the notion of protecting free expression, as well as the extent to which defamation proceedings (or procedures) are becoming constitutionalized. In conclusion, part IV will offer a proposal for a modified test to be applied by courts hearing these motions. II. Provenance and Precursors 1. The Norwich Order and Rule-Based Relief: Distinction or Difference? As noted above, the procedural mechanism at play here is an order for pre- action discovery, which “permits a court…to order discovery of someone who is not a party to contemplated litigation in order to assist the potential claimant in advancing his or her legal rights against the ultimate wrongdoer.”7 The classic use of this remedy is in a situation where an individual is aware or suspicious that a civil 6 Warman v. Wilkins-Fournier, 2010 ONSC 2126 (Div. Ct.). 7 Julia Falevich, “Norwich Relief in Canada: Balancing of Competing Interests” (2010) 37 Adv. Q. 114 at 114. See also R.W. Block, M.A. Marion & R.J.D. Gilborn, “Sealed Ex Parte Norwich Orders: Safeguarding Against Abuse of the Pre-Action Disclosure Remedy” in Todd L. Archibald & Michael G. Cochrane, eds., Annual Review of Civil Litigation 2003 (Toronto: Carswell, 2003) 225.