Web privacy, disclosure a tussle

For the London Free Press - April 20, 2009 Read this on Canoe

In recent years, there has been a struggle between the right to privacy and the right to disclosure of information in criminal and civil court actions. The courts have not been consistent in their approach.

When dealing with people such as child pornography offenders, it is easy to conclude that the accused's privacy rights should not stand in the way of disclosure of information relating to web use.

And it's hard to argue that something one puts on their Facebook page for everyone to see, which contradicts a position they take in litigation, should not be used in court.

However, other situations are not so clear.

On one hand, court procedural rules generally contain a duty to disclose all documents relating to relevant issues that are or have been in the party's control. The principle is that fair and efficient resolution requires the parties to be fully aware of all relevant information.

On the other hand, public policy dictates there should be a reasonable expectation of privacy when people make anonymous statements or comments that they would not normally make without the expectation of privacy.

Under the Personal Information Protection and Electronic Documents Act, Internet service providers and web hosts are, for the most part, not entitled to disclose personal information without customer consent or a court order.

And it makes a difference whether the disclosure request is to a party to the litigation, or an unrelated third party.

In the 2000 Irwin Toy Ltd. vs Doe decision, the Ontario Superior Court of Justice found that a plaintiff must establish a prima facie case before the court would order disclosure. That means that, "at first glance," the request for disclosure has some legitimate merit.

The reasoning is that a person shouldn't be able to start a lawsuit against someone without any merit and require that the identity of an anonymous person be compromised.

However, in 2005, in the copyright infringement file-sharing case of BMG vs John Doe, the Federal Court of Appeal stated that disclosure of IP addresses would be required where the party seeking the disclosure had demonstrated a bona fide case.

That is a lower threshold than establishing a prima facie case. It simply requires that the request for disclosure has been brought in "good faith" and there is no consideration of merit.

The court did not, however, order disclosure because the plaintiff had failed to limit the information requested to relevant issues.

But in the recent decision of Warman vs Wilkins-Fournier, the Ontario Superior Court of Justice ordered disclosure without requiring the plaintiff to establish a prima facie or even a bona fide case.

The court ordered the defendant website owner release information that would help ascertain the identity of eight other "John Doe" defendants who were anonymous posters on a particular website.

These decisions can be technically distinguished from one another based upon subtle nuances between different rules and whether the disclosure was sought from a non-party or a party to the action, but the general concepts are similar.

We remain hopeful that there eventually will be a court of appeal decision that will help by providing some general guidelines that balance disclosure with privacy.