Wednesday, May 05, 2010

Warman and Fournier: Divisional Court Protects Online Anonymity, Overturns Motion Court Ruling

Ontario's Divisional Court has overturned a March 25, 2009 motions court ruling in Warman v. Fournier that threatened to weaken the ability of Canadian writers and activists to maintain a cloak of online anonymity.

At the 2009 motion, the Plaintiff in a defamation suit obtained an Order requiring website operators to disclose the email addresses and distinct ip addresses of certain anonymous writers who had posted allegedly defamatory comments at their website.

The Plaintiff sought this information to assist him to identify the incognito posters.

The owners of the site are named Defendants and responded to the motion. The anonymous posters are named as "John Doe" defendants in the action.

The appeal ruling, while not providing an absolute shield from identity disclosure to anonymous online writers, established a four-point threshold that must be met before such disclosure may ordered in defamation proceedings.

Defamation Law Blog summarizes the ruling, as follows:

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:

  • 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 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.

The disclosure motion itself was not decided. It will be subsequently be re-heard before a different judge, who will be bound to apply these considerations.

As I noted following last year's motion ruling:

While I understand the freedominion authors to be an extremely tempting target to many..., 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.

An appropriate balancing of these important interests has now been mandated by the appeal decision.

More Reading:

- Garry J. Wise, Toronto

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