International Law

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 sought disclosure of the email addresses and distinct ip addresses of certain anonymous writers of allegedly defamatory comments on a far-right website and message-board

The Plaintiff sought disclosure of this information in order 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.

As I noted following last year's motion ruling, in which such disclosure was granted:

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.

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.

More Reading:

• The Divisional Court's May 3, 2010 ruling is here.
• The original motion court's ruling is here.
• Our March 26, 2009 post: Warman and Fournier - Online Anonymity Threatened in Ontario

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW ? CIVIL LITIGATION ? WILLS AND ESTATES ? FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG ? SUBSCRIBE TO WISE LAW BLOG

Full post as published by Wise Law Blog on May 05, 2010 (boomark / email).