2016 June 17

Olsen v. Facebook Inc., 2016 NSSC 155

The Nova Scotia Supreme Court granted a “Norwich” order, on application by the plaintiff, requiring Facebook to provide identifying information with respect to two Facebook accounts operated under pseudonyms. The Court noted that the Ontario Court of Appeal, in 1654776 Ontario Limited v Stewart, 2013 ONCA 184, criticized Warman v Wilkins-Fournier, 2010 ONSC 2126, an Ontario Division Court decision which required a plaintiff to present a prima facie case of defamation to obtain a Norwich order. The Ontario Court of Appeal decision held that “[t]here is no requirement that the applicant show a prima facie case. The nature and apparent strength of the applicant’s potential action should be weighed together with other relevant factors.”

The Nova Scotia Supreme Court held that whether a Norwich order is granted “will depend on the particular circumstances and necessitate a balancing of competing interests.” “I would expect that in many cases the application will be resolved by deciding whether the interests of justice favour the disclosure which involves a consideration of the strength of the plaintiff’s potential claim and the interests of privacy and freedom of expression.” In this case, the Court ordered that only two of three alleged anonymous posters be unmasked. The third poster, who was not unmasked, merely posted a cartoon which did not directly disparage the plaintiff in the same way the posts by the other two posters did. The cartoon, according to the Court, could raise issues of fair comment relating to the conduct of the affairs of a local government.