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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Law Professor "Outed" as Anonymous Blogger

A South Texas College of Law professor's identity has been "outed" by lawyer and National Review commentator, Ed Whelan, in apparent retaliation for a garden-variety, blogospheric row over Supreme Court nominee Sonia Sotomayor's views on judicial policy-making.

John F. Blevens, no longer the anonymous 'Publius' at progressive blog Obsidian Wings, discusses his reasons for remaining anonymous over previous five years:

...I have blogged under a pseudonym largely for private and professional reasons. Professionally, I’ve heard that pre-tenure blogging (particularly on politics) can cause problems. And before that, I was a lawyer with real clients. I also believe that the classroom should be as nonpolitical as possible – and I don’t want conservative students to feel uncomfortable before they take a single class based on my posts. So I don’t tell them about this blog. Also, I write and research on telecom policy – and I consider blogging and academic research separate endeavors. This, frankly, is a hobby.

Privately, I don’t write under my own name for family reasons. I’m from a conservative Southern family – and there are certain family members who I’d prefer not to know about this blog (thanks Ed). Also, I have family members who are well known in my home state who have had political jobs with Republicans, and I don’t want my posts to jeopardize anything for them (thanks again).

All of these things I would have told Ed, if he had asked. Instead, I told him that I have family and professional reasons for not publishing under my own name, and he wrote back and called me an “idiot” and a “coward.” (I’ve posted the email exchange below).

So there you have it – I’ve been successfully pseudonymous since the Iowa caucuses in 2004. During that time, I’ve criticized hundreds of people – and been criticized myself by hundreds more. But this has never happened.

And yes – I criticized Whelan rather harshly. But that’s what the blogosphere is about. Blogging is not for the thin-skinned. And you would think that someone who spends their days trying to destroy other people’s reputations in dishonest and inflammatory ways wouldn’t be so childish and thin-skinned.

Anyway, I’m not sure whether I’ll start posting under my own name or not. And there were several people who already knew – it’s not like this is a state secret. But still, if I wanted my name out on this blog, I would have done so. It should have been my choice.

Professor Blevins' official biography is here.

Wikipedia has Mr. Whelan's background:

M. Edward Whelan III is an American lawyer and a prominent conservative legal analyst. He currently serves as President of the Ethics and Public Policy Center, a conservative think tank.

Formerly, Whelan served as a legal clerk to Supreme Court Justice Antonin Scalia. He has also served in various roles in government, including in the Department of Justice. Previously, he worked as a lawyer in private practice and as Senior Vice President and Counselor to the General Counsel for Verizon Corporation.

Nasty stuff - blogging as blood-sport.

For what it's worth, even some of Mr. Whelan's conservative friends are unhappy with him over this:

Had Publius published Ed’s personal information, or had slandered him factually, I could understand the need to make his identity public and force him to bear responsibility for such attacks. However, as Rick says, calling someone a “know-nothing demagogue” doesn’t qualify. It may be annoying, and I think it reflects very poorly on Publius, but that’s the kind of ad hominem attack bloggers get from Day One. Truman’s Axiom comes into play here — if a blogger can’t take that kind of heat, he ought to reconsider blogging.

Ed’s a great blogger, but I think he let Publius get too far under his skin, and he reacted poorly in outing someone and risking their professional career. Outing Publius didn’t do anything to advance Ed’s argument, but made him look vindictive and petty instead. Bloggers should worry less about the anonymity of bloggers (which isn’t a “bane” at all) and respond to the arguments instead — or ignore them.

But Mr. Whelan does have at least one supporter in Canada's own Professor Michael Krauss of George Mason University School of Law. See his comments today at Point of Law:

On the propriety of hiding behind a pseudonym while sniping at a critic who is out in the open, I see no redeeming argument. I hope the South Texas tenure committee is watching and taking note.

"Off with his head..."

Freedom of speech, neocon style.

- Garry J. Wise, Toronto

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Warman and Fournier - Online Anonymity Threatened in Ontario

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. 

In a March 25, 2009 ruling in Warman v. Fournier, the Court required the Defendant operators of a controversial right-wing website and forum known as freedominion.ca to produce documents and information that may allow the Plaintiff, Richard Warman to identify eight other John Doe Defendants in the case.  

In the action, Mr. Warman claims damages in relation to allegedly libelous, anonymous comments published by the John Does at the freedominion website's message-board.

In ruling for Mr. Warman, the Court required the freedominion owners to produce information and documents including:

(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).

The website operators argued that it was incumbent on the Plaintiff to establish a prima facie case of defamation to demonstrate entitlement to such disclosure.  The Court, relying on the discovery provisions of Ontario's Rules of Civil Procedure, did not agree:

[9] 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.

[10] 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.

[11] In my view, the Rules of Civil Procedure impose a high standard of discovery upon the litigants.

...[23] 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.

[24] In fact, the obligation is on the Defendants to disclose.

Michael Geist, commenting on the decision, quite rightly notes the Court's single-minded focus on the disclosure rules governing Ontario civil proceedings, and questions the Court's summary approach to the privacy-related concerns obviously at risk: 

Protection for anonymous postings is certainly not an absolute, but a high threshold that requires prima facie evidence supporting the plaintiff's claim is critical to ensuring that a proper balance is struck between the rights of a plaintiff (whether in a defamation or copyright case) and the privacy and free speech rights of the poster.  I cannot comment on the postings themselves (and I recognize that Warman has been a frequent target online) but I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met.

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. 

The Warman decision is decidedly weakened by its failure to consider the entitlement to online anonymity in the context of the Charter's guarantee of the right to free expression:

2. Everyone has the following fundamental freedoms:

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

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, 3 VA. J.L. & TECH. 1

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:

The court used its ruling to set for trial courts a "standard that should be applied to balance the First Amendment right to anonymous speech on the Internet with the opportunity on the part of the object of that speech to seek judicial redress for alleged defamation."

In a defamation case involving anonymous speakers, the ruling said, courts should first require the plaintiff to try to notify the anonymous posters that they are the subject of a subpoena. That notification could come in the form of a message posted to the online forum in question, and the posters must be given sufficient time to respond.

The plaintiff must then hand over the exact statements in question, so the court can decide whether the comments are obviously defamatory. Finally, the ruling says, 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.

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

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Lawmaker Hopes to Make Anonymous Blogging Illegal

In an effort to address the ongoing problem of online bullying, Kentucky representative Tim Crouch is attempting to introduce a bill that would make it illegal to post anonymously online.

Lexington, Kentucky's WTVQ News reports:

The bill would require anyone who contributes to a website to register their real name, address and e-mail address with that site. Their full name would be used anytime a comment is posted.

If the bill becomes law, the website operator would have to pay if someone was allowed to post anonymously on their site. The fine would be five-hundred dollars for a first offense and one-thousand dollars for each offense after that.

…Representative Couch says enforcing this bill if it became law would be a challenge.

- Annie Noa Kenet, Toronto

........

Note: Given the ample First Amendement protections afforded online anonymity by U.S. courts to date, it is had to imagine how this Bill, if passed, could survive a consititutional challenge.

For more see:

• Bloggers And The Law - On Orthomom, Avis and Bill O'Reilly - from the Wise Law Blog archives
• EFF Protects Free Speech Rights for New Jersey Blogger - Judge Quashes Bogus Subpoena for Critic's Identity - on the TruthSquad case from the Electronic Frontier Foundation
• Court Protects Blogger's Anonymity - from Legal Blog Watch on the New York Orthomom case

- Garry J. Wise, Toronto

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Journalists Love Blogs

According to research by The Brodeur Strategic Planning Group, blogs are playing an increasingly influential role in the reporting habits of mainstream journalists:

Blogs are a regular source for journalists. Over three quarters of reporters see blogs as helpful in giving them story ideas, story angles and insight into the tone of an issue.

Nearly 70 percent of all reporters check a blog list on a regular basis. Over one in five (20.9%) reporters said they spend over an hour per day reading blogs. And a total of nearly three in five (57.1%) reporters said they read blogs at least two to three times a week.

Journalists are increasingly active participants in the blogosphere. One in four reporters (27.7%) have their own blogs and nearly one in five (16.3%) have their own social networking page. About half of reporters (47.5%) say they are "lurkers" -- reading blogs but rarely commenting.

UPDATE: January 13, 2007

More news from blogs about blogs:

• Paulitics on the reach of blogs: What’s more powerful: Blogs or the mainstream media?
• Public relations profesional Cathy Yingling says Most consumers don't differentiate between mainstream writers and bloggers
• Robert Fitzpatrick canvasses developments in U.S. law relating to blogger anonmymity and the Wayback Machine
• Bill Richardson heaps praise on Daily Kos and bloggers

- Garry J. Wise, Toronto

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