Thursday, March 26, 2009

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 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 to register their access accounts, and/or profiles in the 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,, 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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bigcitylib said...

Interesting, FWIW, here's forum owner Mark's non-technical outline of their defense.

Not being a lawyer (but being semi aware of the techy end) this always looked like a lot of crap to me. Is it possible the judge took a look at their defense and the history of the site (where there still seem to be a few white supremacists posting under pseuds) and figured the stuff was obviously likely to be defamatory?

Anonymous said...

Mr. Wise, it is very likely we WILL be appealing this decision.

Unknown said...

It will be very interesting to see how everything unfolds. Although I'm a priori against the "big brother" model society, I am also advocating for the full accountability of the public speech especially when calling on action. If one is speaking bona fidae there is no need for anonymity. Also, proving defamation prima facie and then again in the process of litigation sounds like a redundant action, thus waste of time and money.
Michael Saban

Robert G. Harvie, Q.C. said...

As a lawyer, firstly, I'm not at all shocked by the Court's response to the motion.

Having now practiced for some 24 years, it is readily apparent that the "politics" of matters brought before the Court is almost as important as the law. Our Judiciary, right up to the Supreme Court of Canada, has showed a willingness to ignore or change the law to suit the political outcome desired.

If one has regard to the decision in Warman v. Fromm, you can see the legal gymnastics the Court was willing to go through to assure that a "wrong-thinking" individual got his due.

I might expect, in this case as well, the concepts of free expression and open debate will be largely ignored or minimized - the underlying message in the Fromm decision being that if you disagree with someone and state so unequivocally, that is evidence of "malice" so that a defence of fair comment doesn't apply.

The Ministry of Truth and the Ministry of Love are alive and well.. and our Judiciary is only too happy to assume the roll of the Though Police. George Orwell would laugh.