Burke v. Trolls just got interesting

Colby Cosh sets up today’s action in B.C. Supreme Court

Chris Young/CP

Question: if you can defame someone on the internet, should they be able to sue you over the internet? Grouchy former Leafs GM Brian Burke intends to find out. His lawyers are set to appear in B.C. Supreme Court in Vancouver today, where they will argue that Burke should be able to serve notice of his defamation lawsuit against pseudonymous members of various internet forums by means of those forums themselves. “Ding! You’ve… got… mail.”

Early commentary on Burke’s lawsuit over claims he had an affair with a broadcaster was focused on the difficulty of tracking down internet anonymice and serving them with the right papers. The established pathway is to go through internet service providers to get them to disclose the identities behind IP addresses—but privacy-conscious tech firms don’t like to give up that info without a court order, and if Johnny Flapgums did not happen to post from home or work, a plaintiff is more or less out of luck anyway. In an unforeseen development, Burke is now asking the court to let him sue internet usernames as usernames, notifying the users of the action through the personal-messaging apparatus of the sites on which they posted their allegedly scurrilous comments.

If Burke succeeds with today’s motion, defendants such as “CamBarkerFan” and “Slobberface” will be forced into a tricky choice between fighting the lawsuit, and thus exposing themselves to a verdict, or laying low and allowing a default judgment to be entered against them, thus exposing themselves to the risk of being identified and penalized later without any chance of a defence.

A court permits alternative (“substituted”) forms of legal service when the usual method of hiring a detective or a process server is “impracticable” or when a defendant is evading service. A plaintiff normally has to prove he has exhausted traditional avenues for serving a defendant personally before a court will let him serve notice by means of registered mail, fax, or e-mail. Doing it by means of social media is a new wrinkle, and the Burke motion has hallmarks of being a longshot, leaning heavily on a few cases scattered widely throughout the Commonwealth. His motion complains that:

The Plaintiff does not know who the Message Board Defendants are or where they are located, and there is no cost-effective means of discovering this information. The only readily apparent means of finding out would be to seek production orders against the various internet service providers… Even if such orders were granted and obeyed, they would only yield e-mail addresses, service on which would essentially be no different than that under the proposed order.

One problem with the legal argument may be its slightly blasé assurance that “the correct people will be served” because the usernames are the same ones under which the alleged defamation was posted. The attempted analogy between an e-mail account and a TorontoGolfNuts.com account might be questionable. Moreover, Burke suggests proceeding not by sending the defendants their official Notice of Civil Claim, but by sending them a link to the notice on the Heenan Blaikie website. It means informing a defendant of a claim by sending them a notice of a notice—an innovation that the master hearing the motion may not wish to entertain, whether or not there are a few handfuls of precedents from the wilds of Australia.

Burke’s motion singles out just sevenof the 18 original defendants for substituted service, but doesn’t quite explain why. (Zack “The Z Brad” Bradley, the spectacularly callow Carleton journalism student featured in the Star as a defendant, is not one of the seven.) These defendants may have been selected because they have not yet deleted their forum accounts; if they had (and some of the other 11 definitely did), it would be impossible for Burke to serve his proposed notice-of-a-notice. It seems unlikely that the master-in-chambers will rule quickly; he certainly ought to take time to scrutinize the proffered precedents, the logic of the motion, and the likely effects on cyberspace. Be careful opening those Twitter DMs out there.

Looking for more?

Get the Best of Maclean's sent straight to your inbox. Sign up for news, commentary and analysis.