You cannot sue somebody who is anonymous

Judge decides whether there are merits to order a company to disclose information about an alleged defamatory reviewer. Lawyer says it is not a fishing expedition.

On February 10th lawyers for Dr. Gerard Losier appeared in Court of Queen’s Bench before Justice Tracey DeWare to argue that the court should make an order that Californian company Rated MD Inc release any information they had about the author of an alleged defamatory comment about Losier.

RateMDs.com is a website where people can leave reviews on their doctors even if the doctors do not submit their business profile.  The site generates revenue from digital display ads but also charges doctors to have access to their profiles so they can moderate reviews.  As with any type  of online review service, there will be negative and inaccurate reviews, and this site is somewhat sleazy because it profits from Doctors who want to moderate inaccurate and anonymous reviews.

In Losier’s case, he did not participate in the site but it was brought to his attention that there were two reviews on the site that were defamatory.  The reviews were posted in May and June of 2020.  As soon as he saw the reviews he flagged them as defamatory and they were removed.  About 40 reviews remained, with a few negative reviews but overwhelmingly positive.

Losier and his IT technician read the reviews but did not retain  a copy of them.  Losier is seeking a copy of the deleted reviews along with any information RateMDs.com about the identity of the author of the reviews.  RateMDs.com requires users to register and confirm a valid email address, and would have IP address records in their web logs that could also help identify.  It does not require users to give their names or any other information before posting a review.

Catherine Fawcett, Losier’s lawyer, told DeWare that rateMDs has agreed to provide the information to Losier but require an order of the court before they do so.  Fawcett said that Losier and the IT technician recalled the nature of the two reviews, and argued that they were defamatory in nature so the court should grant the order.  Fawcett said Losier planned to pursue action against the author (or authors) for the comments making the disclosure necessary.

The nature of the first review was that the author claimed Losier defrauded medicare by overbilling, and the second review alleged Gerad and Judy Losier Foundation was a “front” and would soon be exposed.  Fawcett said Losier was a respected and charitable member of the community and the reviews risked harm to his reputation.  She said this “is not a fishing expedition, the prima facie case has already been made.”

Fawcett argued that the goal of anonymity on the website cannot circumvent the civil remedies for defamation, and therefore the court should order the release of the information if the platform is misused.  For that reason, Losier was seeking a “Norwich Order”.  It’s hard ot start a lawsuit if you don’t know who you’re suing.

Norwich Orders can burden third parties by forcing them to disclose documents or confidential information a claimant requires before commencing a lawsuit that could not otherwise be obtained. Courts will avoid such orders unless a claimant can show why the disclosure is just and necessary in the circumstances, and help advance meritorious claims by preserving assets, identifying potential defendants .

Fawcett cited some case law that set the precedent for these orders, and told DeWare she had an order already drafted and ready to go.  DeWare indicated that she would go along with the request immediately, but preferred to offer her reasons for the request at a later date.  She took a brief recess to see if it was permissible to delay her reasons, and returned to make the order.

Turns out you can’t be anonymous on the internet after all.