The Ontario Superior Court of Justice has issued its appellate decision on whether the owners of the Free Dominion website can be ordered to disclose the identities of several anonymous posters accused of defamation. The original order covered email and IP addresses. On appeal, the Canadian Civil Liberties Association and CIPPIC intervened to argue that the court should take free speech and privacy rights into consideration when assessing whether an order is appropriate.
Relying heavily on the Sony BMG v. Doe case (the file sharing lawsuit that CRIA now denies exists), the court notes that it "illustrates that a court must have regard to the privacy interests of anonymous users of the Internet before granting a Norwich Phramacal order, even where the issue involved pertains to property rights and does not engage the interest of freedom of expression."
The court cites the five factors raised by the Federal Court of Appeal in Sony BMG:
- applicant establish bona fide claim against unknown alleged wrongdoer
- third party against whom discovery is sought must be in some way connected to or involved in the misconduct
- third party must be the only practical source of the information available to the applicant
- third party must be reasonably compensated for expenses and legal costs arising out of compliance with the discovery order; and
- public interest in favour of disclosure must outweigh the legitimate privacy interests.
The court ruled that these principles are similarly applicable to defamation cases, establishing the following criteria in defamation cases involving requests for disclosure of information on anonymous posters:
- whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances
- whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith
- whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
- whether the public interest favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.
Protection for anonymous postings is certainly not an absolute, but a high threshold that requires prima facie evidence supporting the plaintiff's claim is critical to ensuring that a proper balance is struck between the rights of a plaintiff (whether in a defamation or copyright case) and the privacy and free speech rights of the poster. I cannot comment on the postings themselves (and I recognize that Warman has been a frequent target online) but I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met.
It is good to see that the appellate court has restored the balance in addressing these issues.