Monday, February 28, 2011

Tracking Internet miscreants

A growing portion of my practice is working with the litigators in my firm on cases of online torts, including defamation and harassment. This mainly involves working to track down people who do harmful things under a veil of supposed internet anonymity. This includes people who hide behind pseudonyms on chat boards and other internet fora while saying defamatory things in addition to the (apparently) growing problem of creating fake Facebook profiles in order to harass and bully others. We've dealt with similar situations involving online dating sites, where people have set up fake profiles in the names of the victims in order to harass them.

I'm not sure about the psychology behind this, but it certainly appears as though many people feel free to say things about others on the internet that they would never say in "public" or to the person's face. Others, bullies in particular, see the internet as a great place to extend their activities, often with very harmful results.

Some of the cases I've worked on have become well-publicized in this region, and I was asked by the Canadian Bar Association - New Brunswick Branch to present on the topic at their annual Mid-Winter Meeting. In case you're interested, below is a presentation on what sorts of tracks people leave online and how they can be assembled and used to try to identify otherwise unnamed defendants. In almost all cases, they involve applying to the court for Norwich orders, which is a form of order from the court to require a mostly uninvolved third-party to provide information that will lead to the identification of the actual defendant. The court, acting as the gatekeeper, needs to balance the interests of the plaintiff who is looking for a remedy against the interests of both the third party service provider and the unnamed defendant. In short, the court should not allow a fishing expedition, nor should it allow the disclosure if the claim is not reasonably well established. Only if the plaintiff is able to satisfy the following test will the court order disclosure:

(1) the applicant must establish a bona fide claim against the unknown alleged wrongdoer;

(2) the third party against whom discovery is sought must be in some way connected to or involved in the misconduct;

(3) the third party must be the only practical source of the information available to the applicant;

(4) the third party must be reasonably compensated for expenses and legal costs arising out of compliance with the discovery order; and

(5) the public interest in favour of disclosure must outweigh the legitimate privacy interests.

Here is the presentation I gave to the Canadian Bar Association New Brunswick's Mid-Winter Meeting:

Here are a couple of notable reported cases where we have been successful in obtaining information from third party service providers to identify defendants:

Thursday, February 24, 2011

Ryerson University looks to the cloud

Today, I had the great pleasure of being one of the speakers at Ryerson University's broad consultation on the possibility of adopting cloud computing at the university. It was an incredibly high-quality event with a packed auditorium (in the middle of reading week, no less) and a very engaged audience.

The agenda is here: E-mail and Collaboration Tools Consultation | Email & Collaboration Tools Consultation.

My presentation is here:

If you can't see the embedded presentation, try this link:

The full symposium was webcast live and will be available here:

If you want to see the many, many tweets which were sent out, search Twitter for #ryeprivacy.

UPDATE: Over at, Dan Michaluk, who was at the symposium, has posted a few of his observations on the day: Commissioner Cavoukian says the Patriot Act is nothing.

Tuesday, February 22, 2011

Social Media and the Courts

In September of last year, I was honoured to be invited to give a presentation to the Canadian Centre for Court Technology as part of a panel on The Ethical Implications of Technology. My co-panelists were the Assistant Privacy Commissioner Chantal Bernier and Professor Pierre Trudel.

I've just been advised that the video of the presentation is now online here. It's worth checking as it's chock full o' privacy stuff.

If you want to see the presentation, it's here:

Monday, February 21, 2011

Court Grants Ex Parte Order to Preserve Facebook

Last month, one of my partners made an application before the New Brunswick Court of Queens bench for an unusual ex parte order for the preservation and production of the contents of plaintiff's Facebook account. The order and reasons are here: Sparks v. Dubé, 2011 NBQB 40 (CanLII).

It's an unusual situation, which is well summarized by Dan Michaluk: Court Grants Ex Parte Order to Preserve Facebook « All About Information.