Warner v Wilkins-Fournier & John Does – Online Anonymity under Threat in Ontario

The case of Warner v Fournier raises important issues related to anonymity and privacy rights on the internet.   It is one of two decisions of the Ontario Court which has  cast a shadow over  the individual’s enjoyment of  a  “reasonable expectation of privacy”  on the Internet.

The ability of writers, journalists and activists to maintain a cloak of online anonymity has been called into question recently by the Canadian judiciary.

The  important principle at stake, namely the free exchange of ideas and knowledge on the Internet, is driven largely by the freedom of internet users to engage in social and political discourse anonymously.

There seems to be a widespread and  fundamental misconception that people who wish to remain private in publishing their views online anonymously are in some way ‘hiding something‘.   The reality is that in most cases the desire to remain private does not arise from any malicious intent, rather  the knowledge of what others who are more malicious than us can do with our information.

Freedom of expression is one of the most fundamental human rights, but is devoid of  meaning if the legal system refrains from protecting anonymous free speech just because we don’t agree with it.

There are many reasons why people elect to remain anonymous when engaging in speech on the internet.    Political and human rights activists living in countries like China and Iran have resorted to using  anonymisers to communicate online due to  the fear of being persecuted by State authorities for expressing their beliefs openly.

Reporters Without Borders are aware of how many reporters and online writers have been jailed in China by the Government for long jail terms for publishing information suggesting official corruption.

One of the objects of defamation law is to strike an appropriate balance between the protection of reputation and the promotion of free speech. Freedom of speech and the facilitation of the public interest in the free flow of information and the discovery of the truth is achieved by a variety of defences to the action of defamation. As a preliminary matter however, a person seeking to protect their reputation via a defamation action should be required to establish that material posted online is defamatory on it’s face, prior to a Court being prepared to compromise a person’s legitimate privacy interests in speech which hasn’t been established to have been proscribed by law.

In the case of Warman v Fournier the Appellants sought a review of  a motion of  Ontario Superior Court Justice  Stanley Kerhsman  ordering them to disclose details of John Doe defendants named as co-defendants in a defamation claim against them.

The Appellants were the owners and administrators of a website which the defendant alleged contained material which defamed him.   The defendant had identified four of the defendants in question in order to bring a defamation suit against them.  The material which had been posted by the other four persons was available to the Court to inspect.  The defendant through his motion before Justice Kershman sought the details of the remaining anonymous posters from the Appellants for the purpose of serving the Statement of Claim upon them in addition to the defendants he had already identified.

Justice Kershman ordered the defendants to disclose the email addresses and Internet protocol (IP) addresses of the four persons who had posted the allegedly defamatory material on their website forum. The reasoning of the Judge, when making the order for disclosure, was that the right to privacy should not shield a person from either civil or criminal liability.   This raises the question of what kind of proof is required, if any, that a person has engaged in some form of wrongdoing prior to information about them being released.  It also raises the question as to whether IP addresses and email addresses are perceived of as being ‘personal information‘.

Justice Kerhsman held  there is “no reasonable expectation of privacy” for generally public information such as a person’s  name and address.  He did so without any deliberation as to whether there was even a prima facie case of defamation.

In Canada,  whilst privacy rights are not absolute, they are supposed to be balanced against legal liability, reputational interests and the public interest in deciding whether to make such an order. The Canadian Charter of Rights and Responsibilities also recognises the importance of protecting privacy interests and any case which engages privacy interests requirements a consideration of the privacy rights enshrined in the Charter.

This ruling is a disturbing one, as it effectively eviscerates any expectation of privacy individuals enjoy on the internet. Further, it does so even without a Judge making a preliminary finding of wrongdoing.

It is conceivable  the effect of this kind of ruling would be to  encourage website owners to  capture as little information as possible about their users for fear of endangering the interests of their users. This attitude is clearly counter-productive and doesn’t promote the public interest, as there will inevitably arise situations which it is in the interests of the public that such information be disclosed.   The ruling also casts a chill over anonymous internet speech and signals that anyone can obtain access to confidential records of a website’s   subscribers just by filing a lawsuit without a need to demonstrate it has any merit.  It is a well known fact that SLAPP writs are filed in order to stifle speech.  If the approach taken was to become the standard one could conceive of well resourced defendants filing frivolous lawsuits to obtain confidential information about their critics and then withdrawing their actions.

It seems extraordinary that merely adding the ‘information holder’ (the website owner) as a party to the Statement of Claim in the defamation action could be used as a way of circumventing the obligation of a Plaintiff to  demonstrate a prima facie case of defamation to obtain  details of anonymous posters.  Merely launching a   lawsuit cannot absolve a Court of the responsibility to engage in this preliminary analysis when deciding whether to protect the anonymity of persons who post their views anonymously.   Whilst most people would accept that anonymity should never be an absolute shield to disclosure of a person’s information, most people would assume that privacy,  through the lens of anonymity, wouldn’t be completely disregarded by a Court.

That leads to the question of what privacy is and whether there is any reasonable expectation of privacy in the online environment with respect to those who post information online anonymously.

Privacy is properly  conceptualised as the right of a person to exercise some control over their personal information.  For instance,  in criminal proceedings a warrant would be required to obtain personal information, but that warrant would only issue if there was reason to believe that a defendant was guilty of a crime.  By analogy, surely information about anonymous posters in civil defamation proceedings wouldn’t be held to a lesser standard of proof, particularly where the information sought is information which would tend to reveal a lot about their personal lives.

Inherent in the adoption of an alias or screen name on the internet  is the assumption by the user they have an expectation of privacy when  posting material on online forums.   Terms of Service on a website are  insufficient to advance as evidence that users have no legitimate expectation of privacy when using a website, as their adoption of an alias clearly demonstrates otherwise.

There doesn’t seem to be any justification for releasing the personal information of online posters before any preliminary determination is made.  It isn’t clear how merely knowing the identity of the posters of the allegedly   defamatory material advances anything at all.  It  isn’t relevant to the preliminary enquiry as to whether there is any merit to the claim. Where a ruling is made that there is prima facie evidence of defamation, then and only then should the question of their identities become relevant.

Contrary to the reasoning of the Court, IP addresses and email addresses are capable of identifying individuals, and  can reveal a lot about their identity. Merely having possession of a person’s email address can enable a user to locate information of a sensitive and intimate nature.  Entire profiles can be assembled which reveal a user’s beliefs, values and possibly even their physical address depending on the sophistication, resources and determination of the searcher.   This ties their user name to their real world identity.  Canadian and other privacy legislation makes it clear that  IP addresses are regulated by privacy law.

Anonymous free speech has a long tradition harking back to the days when anonymous pamphlets were circulated.  The  publication of the Federalist papers wouldn’t have been possible without protecting anonymous free speech.  Our privacy was previously protected by the inefficiency and cost associated with aggregating, storing and preserving information. However with the advent of technology and computer processing, the internet has become the perfect surveillance machine.

Privacy is grounded in man’s autonomy and whilst  reputational interests also protect privacy, they balance against freedom of speech.  Privacy and freedom of speech are often seen as being in conflict whereas in many ways they support and compliment one another.

It should at least be open to the administrators of a forum to object to such disclosure, following which a court should engage in a deliberation as to whether the court should order production of information.  The process of determining this should be a principled one, requiring a prima facie case to be made out by a plaintiff alleging defamation in the interests of preventing the unnecessary and potentially damaging release of information of innocent posters of material online.  Upon establishing a prima facie case,  a balancing of Charter rights should occur in arriving at a conclusion.

The internet has been a  revolutionary tool for free speech, and anonymity is a critical component of preserving that free speech.  Nobody would  suggest that freedom of expression is sacrosanct and should never yield to other interests.

The judiciary seemed to be focused on the question of whether a person who chooses to post their views on a website is waiving their right to privacy, raising the question of what rights do anonymous posters have to privacy on the internet.

The Plaintiff’s lawyers argued that ordering the disclosure of the IP address of the ‘John Doe’ defendants would not constitute a violation of privacy as individuals cannot be identified directly by this information.  The Plaintiffs also argued that the website user agreement or terms of service stated that if users break the law the website owner would not protect them.

However the fact was that there had been no  preliminary analysis of whether there had in fact been a breach of the law by the Court. The argument was simply framed in a way that suggested the website owners had a duty to disclose the names under the rules of civil procedure which operate in Canada and govern the discovery process.  Even if  the matter was to be resolved entirely by  Ontario’s rules of civil procedure, these rules of procedure require that a request for   disclosure be relevant and proportional, and arguably  privacy interests would be considered under  proportionality.

Canadian courts have recently considered internet privacy rights in the context of criminal investigations. In R v Wilson, Justice Lynne Leitch considered an accused’s  challenge of Bell Canada’s decision to turn over his IP address information to police conducting a child pornography investigation.

The accused was charged with possessing and making child pornography available, and argued that the  court shouldn’t admit evidence stemming from Bell’s actions as, in the absence of a warrant being obtained,   his rights against unreasonable search or seizure under the Charter of Rights and Freedoms.  The investigating officer had obtained the information by requesting the information from Bell  after informing them that he had linked the IP address to illicit images.    Leitch ruled against Wilson’s motion.

The critical aspect of her decision was her  finding that information relating to an IP address isn’t even private information in the first place.

She stated: “In my view, the applicant had no reasonable expectation of privacy in the information provided by Bell considering the nature of that information. One’s name and address or the name and address of your spouse are not ‘biographical information’ one expects would be kept private from the state. It is information available to anyone in a public directory and it does not reveal, to use the words of Sopinka J. in Plant, ‘intimate details of the lifestyle and personal choices or decisions of the applicant.’

Leitch’s ruling that Internet subscriber information isn’t private is questionable, as linking an IP number with a person’s name and address reveals a lot about their online activities and by extension their lives.

In online defamation cases, the identities of those accused of defamation  will usually only be known by the website or an ISP through which the statements were made. Typically, although not always,  a website owner or ISP will decline to disclose a user’s identity in the absence of a court order.

Given the increasing number of disclosure orders being sought against these internet intermediaries,  the Courts have had to craft solutions that strike an  appropriate balance between the privacy interests of anonymous internet posters and the legitimate reputational interests of plaintiffs.

The Warner v Wilkins-Fourier appeals court decision overturned the order of Justice Kershman and now represents the leading authority in Ontario, standing  for the proposition that the objectives of the disclosure obligations under the Rules must be balanced against the right of freedom of expression in internet defamation cases.

The Ontario Divisional Court recognised that whilst protection of anonymity is not absolute, merely commencing a defamation action shouldn’t result in an automatic entitlement to information identifying a previously   anonymous poster,  without a careful consideration and balancing of privacy interests  and freedom of expression. The Appeals Court’s decision was commendable in recognising that Before such information is ordered released, those suing for defamation must first make a prima facie case ie produce reasonable of defamation prior to  an order for disclosure being made relating to the poster’s identity.

Nevertheless, there is still a degree of uncertainty as to  the degree of protection courts will afford to anonymous online speech in the future.  Under Canadian law, plaintiffs have two avenues to pursue  to seek disclosure of the identity of defendants when pursuing  internet defamation cases.

They can  seek pre-action discovery or production of relevant information under procedural rules as occurred in Warman. The  alternative is bringing independent actions for disclosure by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners,  where it was held that where a third party becomes  involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so  the plaintiff may pursue its remedies.

The Norwich factors were recently confirmed by the Ontario Court of Appeal in  internet defamation cases as follows:

1. whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
2.  whether the applicant has established a relationship with the third-party from whom the information is sought, such  that it establishes that the third party is involved in the acts;
3.  whether the third party is the only practicable source of the information;
4.  whether the third party can be indemnified for costs to which it may be exposed because of     the disclosure; and
5. whether the interests of justice favour obtaining the disclosure.

Although the second and fourth  factors weren’t relevant in Warman, applying only to third party respondents and not co-defendants,  some of the other Norwich factors were held by the Court to be similar to the Warman factors a Court should consider in determining whether to order disclosure.

The Warman court held that whilst the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, the Norwich jurisprudence requires plaintiffs to meet a lower bona fide standard. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to choose to meet the lower standard instead.

As previously expressed by the Supreme Court, freedom of expression is among the most fundamental of rights possessed by Canadians, the values underlying it including self-fulfilment and finding the truth through an open exchange of ideas and political discourse fundamental to any democracy. There is also support in Canadian case law for the proposition that the removal of an individual’s right to remain anonymous may constitute an unjustified breach of freedom of expression; Canada (Elections Canada) v National Citizen’s Coalition [2003]. The courts have also developed specific tests to determine whether in any particular case, there is a reasonable expectation of privacy based on the context of the disclosure and the totality of the circumstances; see R. v. Cuttell [2009]

By contrast in the United States the  right to publish anonymously is a well established aspect of freedom of speech recognised and protected by the First Amendment (McIntyre v Ohio Elections Commission).  Numerous American decisions have held that the First Amendment affords considerable protection of such anonymity compared to the protection presently accorded under Canadian law.

It will be interesting to see how society and the law comes to grips with and resolves what the privacy expectations are for discourse in digital spaces held by anonymous users online.

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