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By Christina J. Cook
PKF Lawyers
Winnipeg, Canada

As social media and on-line platforms continue to expand, many people still believe that they can maintain their anonymity on the internet and make comments without consequences.

However, despite one’s best efforts to create a fake or anonymous profile there are effective ways to identify people on the internet for civil and criminal proceedings.

This brief article will address how anonymous profiles are identified in a civil proceeding only and does not speak to criminal matters; however social media and internet users should be aware that online comments/activities can constitute criminal offences (ex. uttering threats, non-consensual distribution of intimate images; criminal harassment; etc).

In the civil context, it is most common in defamation cases for a person to need to identify an anonymous user, where an anonymous user or fake profile has posted defamatory comments or postings. A post will be defamatory wherein a false written statement is made regarding a person that is harmful to the person’s reputation / standing in the community. It is important to highlight that a statement is only defamatory if it is false. A truthful but unkind written statement does not constitute defamation.

A person can apply for an order of the court to compel an internet service provider to provide an anonymous user’s identity and IP address. This order is frequently referred to as “Norwich Order” which refers to the leading case in Norwich Pharmaceutical Co. v. Comrs. of Customs and Excise, [1974] A.C. 133, [1973] 2 All E.R. 943 (H.L.). Such an order is an equitable remedy which is both discretionary and flexible.

Norwich Orders have been ordered in Canada, in various jurisdictions to compel information from internet service providers, or social media sites: Olsen v. Facebook Inc., 2016 NSSC 155; York University v. Bell Canada Enterprises, 2009 CanLII 46447, Entreprises P. & M. Arsenault inc. c. Facebook Inc. 2017 QCCS 3578.

I have obtained Norwich Orders in Manitoba in two separate cases; compelling information from Facebook Inc.: Kainth v. Doe, CI18-01-18401 and Gill v. Dillon, CI20- 01-27209.

The factors for the Court to consider, when considering whether to grant a Norwich Order are:

  1. whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
  2. whether the applicant has established a relationship with the third party (internet service provider) from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of;
  3. whether the third party (internet service provider) is the only practicable source of the information available;
  4. whether the third party (internet service provider) can be indemnified for costs to which the third party may be exposed because of the disclosure; and
  5. whether the interests of justice favour obtaining the disclosure.

Once the order is obtained, the order must be served on the internet service provider. If the internet service provider is in another country, the order must be served through the central authority in the contracting state using the form required under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed at The Hague, on November 15, 1965.

So, the conclusion is that generally a person cannot stay anonymous on the internet and though the process may be costly – there are ways to identify anonymous internet users.