Richard Warman is an Ottawa-based lawyer active in human rights law and is well known for initiating complaints against white supremacists and neo-nazis for Canadian Human Rights Act violations in the realm of the Internet. One of Warman’s most recent targets is the controversial online forum, FreeDominion.ca. In the action, Warman claims damages for allegedly libelous and defamatory remarks made by anonymous posters. In the course of this action, Warman brought a motion to require the owners of FreeDominion.ca to produce relevant documentary information that would be used to identify eight John Doe Defendants.
Warman succeeded on this motion, and on March 25, 2009, in its decision of Warman v. Fournier, the Ontario Superior Court of Justice ordered the disclosure of all personal information, including name, email and IP address, of the eight anonymous posters to the website. While the owners of FreeDominion.ca argued that disclosure should only be warranted if a prima facie case of defamation is established, the Court relied heavily on the discovery provisions (Rule 30.01(1)(a) specifically) of the Ontario Rules of Civil Procedure. The Court stated that “the Affidavit of Documents must include a list of the names and addresses of the persons who might reasonably be expected to have knowledge of the matters in issues in the action, unless the court orders otherwise.”
The salient issue then, in cases like these, is when it would be appropriate for a court to “order otherwise.” The court’s consideration of how the disclosure rules should be balanced with an individual’s privacy rights online should be made in the context of the Charter’s section 2(b) guarantees of freedom of thought, belief, opinion and expression. This is something that the Court did not do. The risk that a court order can be easily obtained to force disclosure of the identity of an anonymous poster can indirectly affect the values enshrined in section 2(b) of the Charter.
As Michael Geist noted in his commentary, to ensure that the rules relating to disclosure are not applied in a vacuum, it is imperative for courts to strike a proper balance between the rights of a plaintiff against defamation and the privacy and free speech rights of the anonymous poster. This balancing act would require a high threshold of establishing prima facie evidence of defamation. Otherwise, anonymous posters online are at risk of having their identity disclosed on the basis of a plaintiff’s mere suspicion.
While American decisions are persuasive at best, the notion that the rights of the plaintiff against defamation and the privacy and free speech rights of the defendants must be balanced are explicitly manifest within them. The Wise Law Blog mentions some relevant cases. For example, the Maryland Court of Appeals, in its decision of Independent Newspapers, Inc. v. Zebulon J. Brodie stated that “the court must weigh the anonymous poster’s right to free speech against the strength of the defamation case and the necessity of disclosing the poster’s identity.” Another example is the Supreme Court of the State of New York’s decision of Greenbaum v. Google where the court refused a plaintiff’s request for disclosure of an anonymous blogger’s identity, because the plaintiff had not established a prima facie case of defamation.
Although the Court does consider some public policy issues within the Canadian context, the court does this by reducing the case at hand into one involving a plaintiff who is an anti-hate speech advocate, and defendants whose “website is so controversial that it is blocked to employees of the Ontario Public Service.” This is a relatively bold statement for the court to make, since rather innocent websites like Facebook are similarly blocked. In any event, would it not be more appropriate for the Court to do the requisite balancing of plaintiff and defendant rights, as general members of society, regardless of their nature and characteristics?
The Warman decision sets a dangerous precedent. As noted in the Wise Law Blog, this decision indicates that there is no evidentiary standard or threshold that must be met to establish a justification for disclosure. It is almost as if the entitlement of disclosure is triggered simply by the commencement of legal proceedings. The risk that identity can be disclosed so easily also threatens one of the fundamental tenets of the wonders of the Internet, and that is the ability to remain anonymous.
5 Responses
An excellent summary and analysis…thank you.
The decision is especially disturbing given the absence of any consideration of whether there was a prima facie case made out with respect to each of the Does. There is here a blanket disclosure order without consideration of the very different writings (and in one case illustration) of each of the Does.
A more careful judge would have made determinations as to the sufficiency of each of the Does writings to establish prima facie the basis for defamation. However, without such consideration, if even one of the Doe posts fails to meet this standard, in my view the order should be overturned.
I think a major reason why the Court of Justice decided the way it did, as noted in the Michael Geist blog, is because of a recent child pornography case where it was determined that there is no reasonable expectation of privacy in one’s name and address information attached to an IP address. It should be noted, however, that another recent case didn’t quite reach the same conclusion about privacy, and that both anyway had to do with ISPs that divulged the info on their own accord. The Terms of Use of the FreeDominion website is also a key factor in determining whether anonymity was expected, as it was the deciding factor in the second aforementioned child pornography case.
I also don’t think that free speech should be too intertwined with the issue of privacy in reaching a determination that the name and address information should or should not be divulged. I guess the argument against this would be that some of these anonymous posters would be harassed in the real world if their views were attributed to them; however, I’m not sure that harassment by private citizens should fall under the Charter’s protection in such a way as to guarantee anonymity as part of section 2(b).
The policy argument seems to be defeated on the judge’s conclusion that “there is no reasonable explanation of privacy” in account information. But what one has an expectation of privacy in depends on who is asking for the information. You may not have an expectation of privacy in your name and address with respect to the state, but that is not to say the expectation cannot exist with respect to others.
The selection from R. v. Wilson (at para 40 in the judgement linked above) uses the terms “state”, “law enforcement agency” and “governmental request” consistently throughout. Warren is not a government agency. R. v. Wilson also relied on Wilson’s contract with Bell to find that he had no reasonable expectation of privacy with respect to the state because he had been given notice that Bell would co-operate with government requests. And it further relied on the fact “account information reveals very little about the personal lifestyle … other than that they have chosen to have some kind of internet connection installed”. The disclosure that you belong to a controversial ideological website seems to go farther than that.
Only a single sentence in the extract from R. v. Wilson indicates this sweeping conclusion. And then only if taken out of context (which it wasn’t, oddly enough).
I have another question.
How relevant is it that there are no contracts in this case? That is, if you need Bell to tell you who is associated with a certain IP, you need a subpoena to get Bell to reveal a customer’s identity, not least because the customer has a contract that includes (I’m guessing) a commitment to privacy protection.
The Fourniers at FD, by contrast, have no contractual obligation to protect their posters’ identity. Indeed, I think in the past they have revealed the names of troublesome posters. They are perfectly free to give up the IP information if and when they choose. It’s just in this case they choose not to.
1. Richard Warman is a lawyer employed by the federal government, department of defence. Before that he worked for the Canadian Human Rights Commission. He is not an independent human rights or anti-hate activist. He could be accurately described as a serial Human Rights Act complainant.
2. Free Dominion (freedominion.ca) has been operating since January 2001 and is no more controversial than a couple of dozen similar Internet forums.
3. Warman’s recent targeting of Free Dominion has nothing to do with human rights, white supremacists or neo-Nazis as implied in the opening paragraph.
4. Warman’s claim of damages for allegedly defamatory remarks are unproven; yet he seeks disclosure of names from freedominion.ca without prima facie evidence of wrongdoing.
5. The Ontario Superior Court decision on Warman’s motion is under appeal at least in part as the decision cited facts that were not put forward by either the plaintiff or the defendants.
6. Operators of the Ontario Government’s internal computer network are not arbiters of public standards or values; they carry out the dictates of their employers.
7. Warman’s self-solicited reputation as an anti-hate speech advocate has no bearing on a libel action naming Free Dominion as respondent. Either commentary cited is defamatory or it is not.
Comments are closed.