Online Anonymity Challenged at Divisional Court

In 2007, Ottawa lawyer, Richard Warman, filed a defamation lawsuit against the operators of the website, www.freedominion.com, including eight anonymous individuals who posted disparaging comments about Mr. Warman’s personal and professional reputation. In 2009, the Ontario Superior Court ordered the website operators to disclose the e-mail and IP addresses of the 8 web posters, 4 of whom have since been identified through other means and added as defendants to the lawsuit. According to the rules of civil procedure, defendants in lawsuits must disclose all relevant documents in their possession. The website operators appealed the order, arguing that individuals generally post online messages with an expectation of anonymity. The Canadian Civil Liberties Association (CCLA) and the University of Ottawa’s Canadian Intellectual Policy and Public Interest Clinic (CIPPIC) intervened in support of the appeal, arguing that a more robust disclosure test should have been applied. Namely, a disclosure order should only take place after the party seeking disclosure has not only demonstrated a prima facie case, but when the public interest favouring disclosure outweighs concerns for freedom of expression and privacy. Supporters of the more robust test observe that while demonstrating a prima facie case is a relatively low threshold, the public interest must then also be measured against such things as the erosion of privacy, the suppression of public debate, and harm to a veritable marketplace of ideas, even if this includes legitimate though unpopular expression. If the Divisional Court upholds the current appeal, however, it may become more difficult for individuals to protect themselves against instances of online defamation.

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Volume VIII

Online Anonymity Challenged at Divisional Court