Anonymous web posters sometimes protected

For the London Free Press - June 7, 2010 Read this on Canoe

Ontario court says website operators can’t always be ordered to disclose the identity of posters accused of defamation.

On May 3, 2010, an Ontario Divisional Court appeal decision addressed the issue of whether a web site operator should be required to produce information that could identify individuals who posted allegedly defamatory comments on that website.

The decision made clear that Canadian courts will order the release of information to identify anonymous posters - but only if certain tests are met first.

In Warman v. Wilkins-Fournier, the plaintiff sued Frank Fournier and Constance Wilkins-Fournier, the owners and operators of the freedominion.ca website plus eight John Does. At issue were allegedly defamatory comments posted on that site, and whether the defendants had to disclose information about the anonymous posters so the plaintiff could sue them.

To determine the identity of these individuals, Warman brought a motion before the Ontario Superior Court asking the court to require the Fourniers to provide information about the individuals' e-mail addresses, personal information used during registration, IP addresses and documents relating to the establishment and ongoing operation of the website.

Justice Kershman was of the opinion that the plaintiff need not show anything to compel the defendants to disclose.

"In fact, the obligation is on the Defendants to disclose", stated Kershman.

The Fourniers appealed that decision and argued those who use forums do so with the expectation that their comments will be kept anonymous.

The Canadian Civil Liberties Association and the University of Ottawa's Canadian Internet Policy and Public Interest Clinic intervened. Both argued the court should not order disclosure unless public interest favouring disclosure outweighs freedom of expression and privacy concerns.

The Ontario Divisional Court parted with Kershman and decided the release of identifying information is not automatic.

The court relied on the Sony BMG v. Doe case, where the Canadian Recording Industry Association tried to get the names of online music file sharers. After taking into account five factors cited in that case, the Ontario Divisional Court unanimously held that although the motions judge was alert to the need to take the privacy interests of the unknown alleged wrongdoers into account, the need to consider the interest in freedom of expression was not raised by the parties or considered by the motions judge.

The court ruled judges must consider the following factors whether information on anonymous posters should be revealed in defamation cases:

  • Whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
  • Whether the plaintiff has established a case against the unknown alleged wrongdoer and is acting in good faith;
  • Whether the plaintiff has taken reasonable steps to identify the anonymous party and has been unable to do so; and
  • Whether the public interest 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.

The Court allowed the appeal and sent it back for re-consideration.