Brian Burke is thought to have struck a blow for accountability on the web with his defamation suit against 18 internet commenters, who last January spread rumours suggesting the erstwhile Toronto Maple Leafs general manager had an affair with sports TV anchor Hazel Mae.
“This will be a very public reminder to people that you can get sued for what you publish on the Internet,” libel lawyer Rider Gilliland told the Toronto Star in a typical response.
But is nabbing pseudonymous trolls the slam-dunk some analysts suggest?
Not by a long shot, says Michelle Awad, a Nova Scotia lawyer who fought a similar case, and has argued issues of Internet anonymity before the Supreme Court of Canada. While it’s true that case law empowers plaintiffs to unmask commenter who post libelous material, she says, the practical hurdles are considerable.
For starters, many web messages originate from IP addresses that host multiple users, such as cafés with unsecured wireless. “Once you have your court order,” Awad explains, “you go to the Internet service provider and ask for the customer information that goes with a particular IP address. But if it’s wireless Internet in a hotel lobby, you’re not going to get very far.”
Information held by the website where the comments are posted can be no more helpful, she adds. “Sometimes they log and say ‘I’m the Easter Bunny at Gmail.’ The site’s automatic registration system doesn’t recognize that’s probably not real.” At that point, says Awad, the plaintiff might take his court order to the webmail host—Google, say, or Yahoo—and seek user information from them. But there again, people can set up pseudonymous accounts from IP addresses that host many users.
So from a legal point of view, the web remains an untamed and unfriendly environment.
The better question arising from Burke’s suit: why does it name commenters but not websites or media companies? Sites, after all, are typically easy to trace to a specific IP address, and the offending statements in this case landed on some well-read ones. Moreover, those linked to major media agencies have deeper pockets, which means a successful plaintiff has the prospect of winning significant financial damages. The messages that so angered Burke appeared on, among other sites, Hockeyinsideout.com, a Montreal Canadiens-themed site run by the Gazette newspaper and owned by the Postmedia newspaper chain; and a popular blog called Canuckscorner.com.
At least one clue lies in a statement Burke’s lawyer, Peter Gall, issued Friday saying his client will seek damages from “everyone who has failed to take down these lies” when Burke first asked them to. According to Awad, the case law on a website operator’s responsibility is far from settled, but the courts look more kindly on sites that take responsibility for what they publish—who make a reasonable effort given the reach of their websites and their resources. Editors with Hockeyinsideout, for example, closely monitor comments, encouraging readers to alert them to potentially defamatory material and taking it down when they decide it crosses the line (a message from a commenter identified as ‘Ncognito’, who is named in Burke’s suit, is no longer on the site).
But others seem keen to play with fire. As the Star noted Saturday, one of the defendants named in the suit, THEzbrad, is linked to a blog where the comments appeared, and where an anonymously posted message this weekend dismissed the suit as “ridiculous.” “Burke obviously did not appreciate these few comments,” the post added, “but the fact that he is going to attempt to sue online commentators is pretty hilarious.”
That’s admirably nonchalant. But here’s some free advice to THEzbrad: take some time out from laughing and get yourself a lawyer.