A decision this week by Ontario Superior Court Judge Stanley Kershman has dramatically weakened the ability of Canadian writers and activists to maintain a cloak of online anonymity.
(a) The email addresses and all personal information the John Doe Defendants used and submitted to freedominion.ca to register their access accounts, and/or profiles in the freedominion.ca site forum;(b) The Intemet Protocol C'IP") addresses of the computers used to establish the accounts in question;(c) The IP addresses the John Doe Defendants used when making the specific postings identified in the Statement of Claim;(d) Any and all documents relating to the establishment and ongoing operation of the website, freedominion.ca, by the Fournier Defendants, such as, but not limited to, hosting agreements, billing information, and website registrant name(s).
 An Affidavit of Documents is required to disclose, to the full extent of a party's knowledge, information and belief, all documents relating to any matter in issue in the action that are or have been in the party's possession, control or power. In addition, 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 issue in the action, unless the court orders otherwise. In my view, the Rules of Civil Procedure impose a high standard of discovery upon the litigants.... The Defendants claim that the Plaintiff did not make out a prima facie case. In my view, there was no need for the Plaintiff to do so. In fact, the obligation is on the Defendants to disclose.
In fact, the ruling may well stand for the proposition that there is no evidentiary standard or threshold that must be met to establish an entitlement to this form of disclosure.
Numerous American decisions have held that the First Amendment affords considerable protection of such anonymity. See: Anonymous Internet Communication and the First Amendment: A Crack in the Dam of National Sovereignty,
A March 2, 2009 decision of the Maryland Court of Appeals in Independent Newspapers, Inc. v. Zebulon J. Brodie established specified procedures to afford online anonymity protection. As reported by CNet:
Similarly, in November 2007, we reported on New York's Orthomom decision, in which a court refused a Plaintiff's request for disclosure of an anonymous blogger's identity specifically because the Plaintiff had failed to demonstrate that any actionable claim for defamation arose from the writings at issue in the complaint.
Robert Ambrogi summarized the decision:
The petitioner, Pamela Greenbaum, a school board member in Lawrence, N.Y., brought a pre-action discovery proceeding seeking to force Google to disclose the author of the blog Orthomom, which Google hosts on its Blogger service
Manhattan Supreme Court Judge Marcy Friedman concluded that Greeenbaum had not shown that she has a meritorious claim for defamation and therefore is not entitled to disclosure of the blogger's identity. Friedman wrote:
[T]he court ... finds that Orthomon's statements are not reasonably susceptible of a defamatory connotation. Greenbaum's defamation claim against Orthomon reduces to the insupportable assertion that Orhomom implied that Greenbaum is an anti-semite merely because Orthomom disagreed with Greenbaum's position on the use of public funding for a program that could have affected the Orthodox Jewish community.
Because the blogger was expressing her opinion about a fact that was not in dispute, her statement was protected by the First Amendment, the judge said.
A similar outcome was reached in a 2007 New Jersey ruling, also involving a request that Google disclose of the identity of a blogger known as Da Truth Squad:
"And I [...] recognize that there are First Amendment issues with regard to disputes with the past administration. And that anyone [...] has a right to make their feelings clear. And they have a right not to be intimidated by the issuance of discovery requests in order to shut them down. For that reason, in many ways, the authority cited by the intervenor is correct and accurate. And first of all the [...] blogger, if in fact it’s an individual person, and I’m assuming absent any evidence that it is another individual person, has a right not to be drawn into the litigation and forced to reveal identity or to impede on his or her First Amendment rights simply on a suspicion, however founded or unfounded, and I don’t believe that this suspicion is sufficiently founded at this point to determine that it is Mr. Moskovitz. That person should not be drawn into the litigation and forced to abide by the rules with regard to exchange of information that the parties have, as opposed to a third party. So the Court is satisfied that there is no authority under law for this particular subpoena to obtain this private information. To allow the subpoena would be undue and unjust infringement on the blogger’s First Amendment rights. There’s no factual basis at this point, other than a mere suspicion for the justification. And ultimately that even if the information were obtained, it would be so remote to the actual elements of this litigation that it would not be admissible under any circumstances."
While I understand the freedominion authors to be an extremely tempting target to many in the blogosphere, little solace should be taken from this ruling.
An order for disclosure may have been justifiable if the statements made by the anonymous posters were, on their face, apparently actionable.
The Court's disinclination, however, to engage in any factual analysis of the alleged defamation or the necessary balancing of competing interests has created a dangerous precedent that should not be allowed to stand.
Based on Warman ruling, the mere commencement of a court proceeding may now give rise to an automatic entitlement to this form of disclosure.
This is an unacceptably broad entitlement to disclosure that unnecessarily threatens the reasonable expectation of online anonymity that many have come to take for granted.
The freedominion owners, however, indicate that they are unlikely to appeal the ruling.
- Garry J. Wise, Toronto
Update - March 26, 2009
In a comment to this post, below, a person identifying herself as one of the freedominion owners now indicates "it is very likely we WILL be appealing this decision."
- Garry J. Wise