Civil Litigation, Defamation

Fake Twitter accounts can give rise to defamation claims

Parody accounts on social media are often viewed as a lighthearted way to poke fun at public figures, but they can become fertile ground for defamatory comment, Fredericton litigator Matthew Pearn writes in Lawyers Weekly.

As Pearn, a lawyer with Foster & Company, explains, this issue was at the centre of the recent case of King v. Power [2015] N.J. No. 78 — a civil action filed by a plaintiff who alleged that he was being defamed by someone using a parody Twitter account.

“Robert King commenced this action after an unknown author, allegedly the defendant Ken Power, began posting defamatory comments to Twitter via an account bearing the handle ‘@fakerobking.’ The comments often referred to a business run by King operating under the name Heavyweights Fitness. King alleged that Power was the author of the Twitter account based upon Power having written public posts frequently addressed to ‘@fakerobking’ on Twitter,” writes Pearn.

Although King sought an order directing Twitter to disclose the IP address belonging to the party posting comments from the account, Pearn says in the article that the motions judge declined to issue the order to disclose, ruling that King failed to provide persuasive evidence that Power was the author of the comments. Prior to the motion, Power had provided sworn evidence at an examination for discovery saying that he was not the author of the account, writes Pearn.

Following the outcome of this case, Pearn says there are steps a plaintiff can take when it is otherwise impossible to determine the identity of a person defaming him or her through social media.

“One possible answer is to commence an action against a ‘John Doe’ defendant and then seek an order to determine the identity of that party after exhausting reasonable avenues to determine the identity of the author,” he explains.

“As was discussed in King v. Power, an order will be granted to assist the plaintiff in identifying the ‘John Doe’ defendant so long as the judge hearing such an application or motion is persuaded that (i) the ‘John Doe’ defendant had no legitimate expectation of privacy, (ii) a prima facie case of defamation was made out by the plaintiff against the John Doe defendant, (iii) a reasonable effort was made by the plaintiff to determine the identity of John Doe but was ultimately unsuccessful, and (iv) there is public interest weighing in favour of identifying the John Doe defendant.”

As Pearn says in the article, orders directing parties to release IP addresses have successfully been obtained in the past to discover the identities of anonymous authors, most notably in A.B v. Bragg Communications Inc. [2010] N.S.J. No. 360. In that case, the plaintiff received an order to have Eastlink provide the IP addresses of an anonymous author after proving a prima facie case of defamation.

“The cases demonstrate above all else that while defamatory comment may find new forums, courts will provide plaintiffs with the tools necessary to uncover the identities of those defendants who post libelous comments,” he adds.

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