Disclosure of the Identity of an Anonymous Author

• Author: David A. Potts
• Profession: Barrister, Bar of Ontario
• Pages: 135-162



 : Disclosure of the Identity of an

Anonymous Author

A. PRIOR TO COMMENCING PROCEEDINGS

Many indiv iduals post their defamator y messages anonymously on the In-

ternet. One of t he most common problems the plainti faces in a cyberlibel

action is tr acing and determining t he identity and address of t he defendant

prior to commencing proceedings.

) How Anonymity Is Achieved

Internet users can attempt to have and oen achieve anonymity by

opening an account with a fake na me, or pseudonym;•

posting their defamatory publications from Internet cafés; or•

using some website that hosts companies, which allows them to es-•

tablish and maintai n websites without being required to disclose t heir

true names or address.

See Matthew Col lins, e Law of Defamation an d the Internet, d ed. (New York:

Oxford University Press , ) at –

) How Anonymity Is Lo st

Despite the appearance of impenetrable anonymity, it may, in fact, be harder

to hide on the Internet than it is imagined:

. Every computer connected to the Internet “has a unique numeric address.”

at numeric address is attached to a particu lar computer.

See Matthew Col lins, e Law of Defamation an d the Internet, d ed. (New York:

Oxford University Press , ) at 

  Cyberlibel: Information Warfare in the st Century?

b) In the case of Internet u sers who gain access to the Internet through a

commercial Internet Service Provider (ISP), the ISP will u sually have the

technical ability to monitor and determine how each of its subscribers

uses the Internet and to trace individual communications back to the ori-

ginating computer.

See Matthew Col lins, e Law of Defamation an d the Internet, d ed. (New York:

Oxford University Press , ) at –

c) For Internet users who send messages via an employer’s computer system,

the tracing is even easier.

See Matthew Col lins, e Law of Defamation an d the Internet, d ed. (New York:

Oxford University Press , ) at –

ere is some limited protection against invasion of privac y in various

legislation, such as:

Personal Information Protection and Electronic Documents Act• , S.C.

, c. [PIPEDA]

e Data Protection Act  • (U.K.), , c. 

In the Ca nadian context, the Canadian Association of Internet Providers

(CAIP), for example, self-regulates the d isclosure of user identity on the In-

ternet through its “Privacy Code” a nd “Code of Conduct.”

See CAIP, “Privacy Code ” ( November ), online: www.cata.ca /les/PDF/caip/

CAIP_Privacy_Code .pdf and CAIP, “Code of Conduct,” online: ww w.cata.ca/

les/PDF/caip/CAIP_Code_of_Conduct.pdf

) Personal Observations

a) Pro cess

Generally, the process of obtai ning the identity of anonymous defendants is

as follows:

. Plainti’s counsel will write to t he ISP identifying the defamatory state-

ment and the Uniform Resource Locator (URL), and request that the ISP

disclose the identity to the authorities, and the defamatory information is

removed.

. e ISP will either agree to remove the material and provide the informa-

tion requested, or remove the material and indicate t hey will provide t he

names upon receipt of a court order.

Note that the ISP will not generally oppose the motion, but they will not con-

sent to the motion. In theory, the ISP may ref use, but in practice, I have not