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Nothing is anonymous when it comes to email

By John De Vellis

It's a common scenario in condominium corporations: during a dispute, anonymous email accounts or Facebook pages begin spreading rumours and making false accusations against board members, management or staff.

An Ottawa condo corporation facing this scenario managed to obtain a court order directing the email provider to identify the author of anonymous messages.

In this case, an anonymous email was sent to board members and unit owners after the resignation of the corporation's superintendent. The sender alleged that the board allowed a contractor to harass the superintendent because members of the board were receiving illegal kickbacks from the contractor. Cease and desist letters were sent to the anonymous email account but the messages continued.

The condo corporation wanted to sue the sender for defamation but didn’t know who was sending the emails. The group was prepared to go to court to find out the identity of the sender.

There is a type of court order, called a Norwich order, which allows a party to obtain information needed to bring a lawsuit. Courts, however, are reluctant to grant them because they can potentially impede the rights of innocent third parties. In order to obtain a Norwich order, the applicant must meet a rigid four-part test.

The condominium corporation was granted a Norwich order requiring the email provider to disclose information about the identity of, and contact information for, the individual sending the allegedly defamatory emails.

The court granted the order because the corporation met all four parts of the test:

  1. it was able to demonstrate that it had a potentially viable claim for defamation;
  2. the email provider was not completely unrelated — it was implicated in the defamation as the emails were sent over its servers (although there was no suggestion of a claim for damages against the company);
  3. the provider was the only practical source for the information; and
  4. the costs to the provider would be minimal (although the condominium corporation had agreed to reimburse any such costs).

The judge also found that the intended defamation action was a reasonable step by the condo group "to ensure that its board members and employees are not subject to statements which I have found are capable of being found to be defamatory."

In the circumstances, the sender of the email could not have an expectation of privacy in using the internet for publishing defamatory emails.

The decision is welcome news for condominium corporations and a helpful reminder to all of us that nothing is anonymous when it comes to electronic communication.

John De Vellis is a Toronto condominium lawyer with Shibley Righton

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