The B.C. Supreme Court has permitted Vancouver lawyer Peter Gall to serve papers via private messages on online forums to seven out of 18 individuals who anonymously posted what Burke says are defamatory comments about him.
Normally, courts will only allow plaintiffs to serve notice by other means if they can prove they have exhausted efforts to serve the defendants personally. While there have been cases where people have been notified by email or through social media such as Facebook and Twitter, Gall said doing so through an online forum appears to be unprecedented and is a way for the law to catch up to the realities of the Internet.
But Vancouver media lawyer Dan Burnett questions whether the court order would have an impact on Burke's civil suit, particularly if the recipients don't respond.
"Let's say they go through that process, and they prove to the court they have complied with all the substitutional services requirements the judge imposed to properly serve Slobberface (one of the defendants), and Slobberface doesn't respond, so what does that mean?" he said in an interview Wednesday. "
You get a default judgment against someone named Slobberface? We know that's a fictitious person, so what good is that?"
Burnett said under most circumstances, when a person does not file a defence within a given time, the suing party is entitled to a default judgment, which can result in the collecting of compensation from the defendants.
"You usually collect on it by garnishing their wages or by seizing their property," he said. "But obviously their wages and their property wouldn't be in the name of Slobberface, it would be in their personal name."
Montreal-based lawyer Allen Mendelsohn, who is representing the owner of one of the blogs on which some of the online comments were posted, said he is concerned some of the intended recipients may not see the legal notice on the messaging boards, and thus will miss the opportunity to defend themselves.
"Some message boards, if you get a private message, you'll get an email notification that you have a new message," he said. "In the cases where you don't get this email notification, if you don't log on to this message board for a period of months. . . you would never know that you have this new message. And as a result, you would never know that you have been served."
According to the notice of application, Burke's lawyers said they have contacted the administrators of seven message boards, asking for the identities of commentors who went by names such as Slobberface and NoFixedAddress. The administrators denied their requests.
Burke, who filed the defamation lawsuit seeking damages last month, said in the suit that online comments that imply he has fathered a child with a sportscaster are untrue.
While Burke is suing a total of 18 people, Gall says he believes the legal team may be able to track down a number of them and serve notice to them personally.
"We think we may be able to find out who some of the 11 are, but these seven, this was the only way of affecting service," he said.
Gall said if the seven recipients don't respond, he will "take other steps to force our claim against them."
While Gall didn't elaborate, Burnett said Burke's legal team could obtain a court order to get an Internet service provider to disclose the customers' names that matches the ones used in the message boards. But they must prove that the court order is the only way to obtain those identifications.
"They may have yet to do that if they ever want to get to the real names," Burnett said. "Sometimes that process ends up in a dead end. You finally get the IP address, it turns out to be some Russian server, or you get a local server. . . and you get the customer name and it turns out to be from an Internet cafe."
Still, Burnett agrees with Gall that Tuesday's court order is at least a symbolic step towards addressing the current legal challenges that the Internet poses.
"People post things, they don't necessarily have their names attached, people can be hard to track down and so the judicial process can be frustrated," he said. "So this is an attempt to get a bit creative and confront this new reality, and the judge said 'OK, let's go this way.'"
Full written reasons for the court order are expected soon.