Brian Burke’s defamation power play

Jennifer Dolman

May 21, 2013

Julius Melnitzer, Financial Post, National Post

Former Toronto Maple Leafs general manager Brian Burke’s high-profile defamation lawsuit highlights the legal and practical difficulties that online defamation victims face when seeking help from the courts.

Late in April, Mr. Burke sued 18 anonymous online users in the British Columbia Supreme Court. He alleges that they falsely accused him of having an extra-marital affair.

Yet the law surrounding online defamation remains uncertain. Ontario courts, for example, have yet to determine how long an individual can wait before the time for filing a lawsuit runs out. Generally speaking, Ontario law requires victims to serve notice of an alleged libel within six weeks of publication, and to file a lawsuit within three months. Whether this relatively brief period applies to online defamation is unclear.

The uncertainty may well have influenced Mr. Burke’s decision to sue in B.C. although he has a home in Toronto.

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Jennifer Dolman of Osler, Hoskin & Harcourt LLP’s Toronto office says that tracking down anonymous posters, bloggers or tweeters can require considerable ingenuity.

“It all depends on the sophistication of the blogger,” she says. “It’s not so much a matter of being sharp as a matter of being diligent and careful.”

One of the problems is the proliferation of websites that allow individuals to communicate anonymously.

“All someone has to do is to make a point of coming up with an anonymous address, and that’s fairly easy,” Ms. Dolman says. “Even Hotmail doesn’t require anyone to reveal personal information or pay to set up an account. So even if you track down the site and the company behind it, you won’t necessarily unearth the identity of the blogger.”

Accessing the web from an Internet café is another good tactic for remaining anonymous. “Everything is sketchy in these places,” Ms. Dolman says. “As my 12-year-old daughter puts it: ‘Throw a toonie in a bowl and get an hour.’”

Even expensive surveillance once the café has been identified may be a waste of time.

“People who want to stay anonymous tend to be very careful and patient,” she says. “Sometimes you can draw them out if they can’t resist going back to their favourite café.”

Although Internet tools for cracking anonymity are plentiful, finding and using just the right ones can be very time-consuming without the assistance of an expensive expert.

“You have to know what you’re looking for, and even then, it’s very hit and miss,” Ms. Dolman explains.

Some plaintiffs have gone so far as to hire linguistic analysts to search for similarly-worded postings on non-anonymous sites.

“The upshot is that this can get very expensive for the client, and it’s hard to predict how much it will cost. Your best course is to outline the options and then go step-by-step,” Ms. Dolman says.

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