In a recent case, CCC No. 282 v. Yahoo! Inc., a condominium corporation obtained a court order requiring Yahoo! Inc. and Yahoo! Canada Inc. (collectively “Yahoo”) to provide information to help identify the author of allegedly defamatory e-mails sent to condominium unit owners and occupants.
After the resignation of the condominium superintendent, a disgruntled unit owner sent an e-mail to the other owners and occupants of the condominium alleging that the board members turned a blind eye to a contractor harassing the superintendent, because the board members were receiving kickbacks from the contractor. The e-mail was anonymously sent using the pseudonym username “Ian Fleming”.
The Superior Court Justice granted the order (which is referred to as a “Norwich Order”) based on the following:
- The condominium corporation demonstrated a bona fide claim for defamation against the author of the e-mails, as the words used in the e-mails were capable of being defamatory against the corporation’s board members.
- Yahoo was involved in the wrongful acts, as without Yahoo’s e-mail services, the author of the e-mails would not have been able to send them.
- Yahoo was the only practicable source of the required information.
- The costs of complying with the court order were anticipated to be nominal, and the condominium corporation undertook to indemnify Yahoo for its reasonable costs to comply.
- The interests of justice favoured the disclosure for several reasons:
- The author of the e-mails “could not have a reasonable expectation of privacy in relation to the use of the internet for the purposes of publishing defamatory statements to a wide group of recipients”;
- The condominium corporation’s application for a court order was a step, reasonably taken to ensure that its board members would not be subjected to statements that could be found to be defamatory; and
- The disclosure was necessary in order to identity the author of the emails.
As the author of the e-mails was unknown, there was no way to give notice of the court application to the author. The author will probably be surprised that the condominium corporation was able to ascertain his/her identity.
When condominium owners disagree with decisions or actions taken by the board and/or management, sending or posting anonymous e-mails or notices is not the proper way to deal with these disagreements, especially if the content of the e-mails/notices could be defamatory.
