Wednesday, May 29, 2013

You Can Now Sue A Pseud

Former Canuck's GM Brian Burke has been cleared to serve the people who allegedly defamed him over the Internet, over the Internet.  The defamation was spread through a number of on-line message boards, so here's what Burke's lawyers will do (the full court docs are here):
The document goes onto to say that, given the way these boards are typically structured, the recipient will "probably" see the private message, and respond to it or not.  In addition, Burke will (from The Province  story linked above): required to advertise in a national newspaper requesting the individuals respond to the lawsuit.

I see several shortcomings with this approach.

For example, the defendants could, upon reading about Burke's successful court application, abandon their forum accounts to avoid the private message.  And who reads the papers these days anyway?

And of course, even if it can be confirmed that the defendant received the message, Burke's lawyers still don't know who they are.  But if  they still haven't been ID'd at the end of the day, collecting damages is impossible.

And of course, even if you do attach a real person to a forum account, they can still use the identity theft defense (ie "someone else hacked my account" ).  To this end, it might be better to employ a public message.  These were hockey forums, so for example Burke's lawyer could drop a link to the legal documents into the middle of a discussion in which a particular defendant was a participant.  If, in thus participating, the defendant was engaged in his typical forum behavior, the identity theft defense would be less plausible, especially if they responded publicly to the message containing the link.

PS.  This post updates this post.

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