Patching the Cloak of Anonymity: The Freedom of Expression, Privacy and Defamation Law

Robert Dewald is a JD Candidate at Osgoode Hall Law School.

The internet provides an ideal environment for users to express themselves, their ideals and concerns.  This expression is valued by society and enshrined in the Canadian Charter of Rights and Freedoms which protects various rights and influences the interpretation of Canadian law.    However, protecting expression can be limited in certain circumstances, such as in cases of defamation.  The internet can be used as a tool for defamation, as it allows users to widely disseminate information anonymously that is false or misrepresents someone’s words or actions. 

Hiding behind the cloak of anonymity, afforded by the internet, allows users to strike out against others with apparent impunity, as their identity is likely only known by Internet Service Providers or the websites used to post the information.    To counter the ability of internet users to defame others, plaintiffs such as Richard Warman have brought defamation claims in order to expose anonymous John Does.  These claims require judges to carefully consider the conflicting interests of privacy, freedom of expression and disclosure of information leading to the identification of John Does. 

The Ontario Divisional Court decision in Warman v. Fournier et al considered the appeal of a court order requiring the appellants, administrators of the website Free Dominion.ca, to disclose all information in their possession regarding eight anonymous John Does, including their email addresses and the internet protocol address used to make alleged defamatory postings.  The issue in the proceeding was to consider whether Rule 76 of the Rules of Civil Procedure required automatic disclosure of identifying information in internet defamation cases, which is not protected by privilege, or whether the Court must also consider the interests of privacy and freedom of expression of the John Doe Defendants.  Ultimately, even though the Charter does not apply to strictly private litigation, the Court decided that because the Rules of Civil Procedure have the force of a statute, they must be interpreted in a manner consistent with Charter values.  Thus, freedom of expression and privacy must be considered, and disclosure of a John Doe’s identifying information is not automatic. 

After discussing the Charter values of freedom of expression and privacy, and balancing these with the public interest of disclosure in internet defamation cases, the Court in Warman v. Fournier et al next considered how to apply these factors in the context of an on-going action where a motion for disclosure is made using Rule 30.06 of the Rules of Civil Procedure.  In order to prevent the abusive use of the litigation process the court identified the risk that:

Plaintiffs with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view of stifling such commentators and deterring others from speaking out on controversial issues. (Warman, para 33). 

While imposing a standard requiring a plaintiff to establish a prima facie case of defamation prior to disclosure of identifiable information would prevent frivolous or malicious claims from stifling expression, it is also essential not to prevent plaintiffs from accessing evidence that could strengthen their case as a result of knowing the identity of the defendant and the nature of their involvement. 

To ground the consideration of Charter values in Canadian law, the Court next relied upon the case of Norwich Pharmacal Co. v. Comrs. of Customs and Excise, [1974] A.C. 133 (H.L.) which established ‘pre-action’ discovery criteria to permit a plaintiff to discover the identity of a proposed defendant.  The Norwich criteria have been incorporated into Canadian law and have been upheld by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation and the Federal Court in BMG Canada Inc. v. John Doe.   The Norwich criteria allowed the Court in Warman to establish four considerations:

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 interests 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.

                                                                                                                              [Warman, at para. 34]

This decision unlike the standard in Norwich jurisprudence which requires only a bona fide standard, suggests that a prima facie standard is appropriate in certain circumstances.  In defamation cases there is little danger a plaintiff will not know the actual case it wishes to assert, as he or she will know the precise details of what was done by each of the anonymous alleged wrongdoers.  The chilling effect on expression and erosion of the privacy interests of the defendants which would result from disclosure also strengthens the case for the higher prima facie standard.  

The careful consideration of privacy, freedom of expression and the public interests advanced by exposing alleged proponents of defamation proposed in Warman is appropriate as it incorporates important policy considerations into the determination of when disclosure is appropriate under the Rules.  The reversal by the Court of the dangerous previous precedent set by the motions judge, which presumed an entitlement to disclosure as a result of the commencement of a legal proceeding, corrects the misconception that disclosure in discovery is automatic.  This decision is an important precedent for future pre-trial discovery proceedings as it helps preserve anonymous expression that forms a fundamental part of the internet.