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Ontario Court Sets Standard For Disclosing Anonymous Posters

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:

  1. applicant establish bona fide claim against unknown alleged wrongdoer
  2. third party against whom discovery is sought must be in some way connected to or involved in the misconduct
  3. third party must be the only practical source of the information available to the applicant
  4. third party must be reasonably compensated for expenses and legal costs arising out of compliance with the discovery order; and
  5. 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:

  1. whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances
  2. whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith
  3. whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
  4. 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.

When the original decision was released last year, I argued:

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.

5 Comments

  1. Get a VPN
    VPN or Tor ’nuff said.

  2. Jack Robinson says:

    Anonymity on the Net? Ya Gotta Be Kidding!
    While I greatly admire your ferocious diligence and often Quixotic fervour, Mr. Geist, in championing Free Speech and Open Access issues in what has, in my humble estimation, become a Digital Diaspora… the very nature of the Broadband Beast is trip-wired with user liabilty peril.

    DNS identity leaves the same, potentially exploitable footprint as DNA at a Gang Bang. And the Courts’ actual ability to construct concrete parameters of legal precedence is perilously akin to building a bunker on quicksand.

    My paltry advice to the Zeitgeist Vox Populae: If yer gonna go skinny-dippin’ with Cyber Sharks… wear a Sandboxie-style thong ’round yer Jewels of Wisdom!

  3. Right to privacy
    @Jack – I’m not sure it’s a right to be anonymous, but that the internet should adhere to similar rules that govern telephone communications. ie, I know that when I use the telephone I’m not “anonymous”, but I do expect that govt, police, or even the telcos are not listening in on my calls without a court order, or that my personal information is not handed over without court oversight. Having an ISP handing over information without a court order would be like trying to solve a murder when you know that someone made a call somewhere near the murder scene, so you want to get a list of all people that made calls, and their contents, in a particular area without a court order. While that might speed up the investigation (maybe) it’s a violation of your right to privacy.

  4. The Bottom Line
    What makes this case especially interesting is that the Applicant for the information is Canada’s serial litigant and foremost “human rights” censor, Richard “I sue everybody” Warman (http://www.richardwarman.com). Though he is a “lawyer” you rarely represents himself fully on his lawsuits. For the most part, he has relied on the Canadian “Human Rights” Commission to fight his censorship cases for him.

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