Richard Warman is an Ottawa-based lawyer active in human rights law and is well known for initiating complaints against white supremacists and neo-nazis for Canadian Human Rights Act violations in the realm of the Internet. One of Warman’s most recent targets is the controversial online forum, FreeDominion.ca. In the action, Warman claims damages for allegedly libelous and defamatory remarks made by anonymous posters. In the course of this action, Warman brought a motion to require the owners of FreeDominion.ca to produce relevant documentary information that would be used to identify eight John Doe Defendants.
Warman succeeded on this motion, and on March 25, 2009, in its decision of Warman v. Fournier, the Ontario Superior Court of Justice ordered the disclosure of all personal information, including name, email and IP address, of the eight anonymous posters to the website. While the owners of FreeDominion.ca argued that disclosure should only be warranted if a prima facie case of defamation is established, the Court relied heavily on the discovery provisions (Rule 30.01(1)(a) specifically) of the Ontario Rules of Civil Procedure. The Court stated that “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 issues in the action, unless the court orders otherwise.”
The salient issue then, in cases like these, is when it would be appropriate for a court to “order otherwise.” The court’s consideration of how the disclosure rules should be balanced with an individual’s privacy rights online should be made in the context of the Charter’s section 2(b) guarantees of freedom of thought, belief, opinion and expression. This is something that the Court did not do. The risk that a court order can be easily obtained to force disclosure of the identity of an anonymous poster can indirectly affect the values enshrined in section 2(b) of the Charter.
As Michael Geist noted in his commentary, to ensure that the rules relating to disclosure are not applied in a vacuum, it is imperative for courts to strike a proper balance between the rights of a plaintiff against defamation and the privacy and free speech rights of the anonymous poster. This balancing act would require a high threshold of establishing prima facie evidence of defamation. Otherwise, anonymous posters online are at risk of having their identity disclosed on the basis of a plaintiff’s mere suspicion.
While American decisions are persuasive at best, the notion that the rights of the plaintiff against defamation and the privacy and free speech rights of the defendants must be balanced are explicitly manifest within them. The Wise Law Blog mentions some relevant cases. For example, the Maryland Court of Appeals, in its decision of Independent Newspapers, Inc. v. Zebulon J. Brodie stated that “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.” Another example is the Supreme Court of the State of New York’s decision of Greenbaum v. Google where the court refused a plaintiff’s request for disclosure of an anonymous blogger’s identity, because the plaintiff had not established a prima facie case of defamation.
Although the Court does consider some public policy issues within the Canadian context, the court does this by reducing the case at hand into one involving a plaintiff who is an anti-hate speech advocate, and defendants whose “website is so controversial that it is blocked to employees of the Ontario Public Service.” This is a relatively bold statement for the court to make, since rather innocent websites like Facebook are similarly blocked. In any event, would it not be more appropriate for the Court to do the requisite balancing of plaintiff and defendant rights, as general members of society, regardless of their nature and characteristics?
The Warman decision sets a dangerous precedent. As noted in the Wise Law Blog, this decision indicates that there is no evidentiary standard or threshold that must be met to establish a justification for disclosure. It is almost as if the entitlement of disclosure is triggered simply by the commencement of legal proceedings. The risk that identity can be disclosed so easily also threatens one of the fundamental tenets of the wonders of the Internet, and that is the ability to remain anonymous.