Thursday, July 28, 2011

Anonymous Online Commenting Is Safe For The Time Being

This week's decision in Phyllis Morris' defamation case, where Justice Carole Brown ruled against forcing the identifiction of anonymous commenters on the Aurora Citizen's website, can only be viewed as a victory for civil liberties in this province. (The linked article refers to the commenters as "bloggers," thereby continuing the generalization of the term; the individuals in question were commenting on forums moderated by the site's managers.) Ms. Morris' action is against the Citizen, who she claims published comments that were defamatory towards her as Aurora's former mayor.

However, although Justice Brown rightly notes that
The public interest favouring disclosure [of the bloggers’ names] clearly does not outweigh the legitimate interests in freedom of expression and the right to privacy of the persons sought to be identified...
...what is somewhat troubling is that then she further qualifies her decision by pointing out that in addition to the interest of freedom of expression, Ms. Morris also didn't do all the legwork:
It is not the role of the court to parse the impugned articles and blogs before it to attempt to determine, by divination or divine inspiration, which statements it should assess in determining whether a prima facie case has been established.
While sarcasm aimed at a litigant whose pleadings are incomplete or insufficient is always welcome in this writer's eyes, one cannot help but feel that by including it the justice has in some way qualified her decision on a procedural level - allowing the question to be raised that, had Ms. Morris filed a more complete brief clearly identifying the comments she felt were slanderous, would the judge then have been more receptive to her motion. This offers an additional ground of appeal on the decision and one that allows others to call into question the free speech bonafides of Justice Brown's decision.

(This seems analogous in some ways to the BC case Crookes v. Newton, where a superior court-level decision stating that publishing a hyperlink to defamatory material was not itself publication of defamatory material in that instance, but left the question of whether or not hyperlinking itself could ever constitute republication of defamatory material to the eventual Court of Appeal decision. Which of course said that this is almost never the case.)

After all, if we are to look to existing precedent regarding anonymous online communication and how it is privileged as free expression, the United States can provide us with numerous (non-binding) precedents. Most notable in this instance is Anonymous Online Speakers v. United States Dist. Court for the Dist. of Nevada Reno, a Ninth Circuit Court ruling from 2010 that stated unequivocally that an author's decision to remain anonymous when publishing online was protected by the First Amendment.

Although the First Amendment is not exactly the same thing as section 2(b) of the Charter of Rights and Freedoms, protecting Canadian freedom of expression, there is a great deal of similarity between the two and Anonymous Online Speakers should certainly be given weight in any future decisions of this nature (such as the appeal Ms. Morris has already promised to pursue).

- Christopher Bird, Toronto

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