Legal Research

Anonymous Speech

By John Gregory

The Ontario Divisional Court is going to hear an appeal of the Warman v Wilkins-Fournier case, in which the issue is whether an internet intermediary (here a blog site) must disclose the names of people alleged to have defamed someone.

The Ottawa Citizen has the story.

The trial decision requiring disclosure is at 2009 CanLII 14054 (ON S.C.)

Both sides are suitably apocalyptic in their predictions of disaster if they lose. (Canadian Civil Liberties Association and CIPPIC intervened against disclosure.)

Those opposing disclosure (on court order) say that whistleblowing and populist activism will be chilled or will dry up if the names of the people who post accusations can become public.

Those promoting disclosure say that it will be completely open season on reputations and civil discourse if people can say anything they want and not be held to account for it.

It seems likely that the law is that the court asked to order disclosure has to consider how reasonable disclosure is, which in part means looking at how serious the allegations against the anonymous speakers/writers are, how serious the damage may be that they are alleged to have caused, and possibly any likely privacy interests they have. That may depend on the context for the remarks.

Does that seem a likely statement of the law to you? Is it reasonable? Is it too vague to permit the kind of speech that should be allowed in Canadian law? Or does it allow too much irresponsible vilification?  The SCC has held that reputation is worth defending — and there is no question that some kinds of attacks on reputation can make it very difficult for the person attacked to participate fully in public life. OTOH not all chill is justified, and not all reputations are deserved.

Where would you draw the line? At (credible) threats?  Only at language that would be criminal, e.g. incentive to harm, or incitation of hatred? At general defamation?

Note that we are talking here of finding out the identity of the actual speakers, and not dealing with potential liability of the intermediary for the speech.

Do we or should we draw the line in a different place from cases where law enforcement officials ask for, and often get, IP addresses from ISPs when they are investigating a crime, a topic that we have discussed on this list before?  Is privacy a higher value in a civil dispute than in a criminal one, or vice versa?

Full post as published by Slaw.ca on April 13, 2010 (boomark / email).