The Ontario Superior Court of Justice recently released two decisions, one last month and one last week, on the issue of online anonymity, tackling that delicate balance between competing privacy interests, the public interest of promoting justice by facilitating the prosecution of defamation and the underlying values of freedom of expression.
In both cases, the court considered four factors as found in Warman v. Fournier to determine whether the anonymity of the defendants should be maintained in the face of alleged defamation. The factors are:
(i) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (ii) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (iii) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and (iv) whether the public interests 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.
In the end, one saw the privacy rights of the alleged defamer upheld and one which fell in favour of the defamed.
This case involves anonymous posts on a blog whose purpose is to facilitate political comment. Phyllis Morris, the former mayor of Aurora, claims that in the last mayoral race in 2010, she was defamed by the Defendants, including the anonymous Defendants. She sought to identify these anonymous Defendants in order to sue them for defamation.
In this case, there was the added factor that the alleged defamatory statements were also political speech, a form of expression well understood to garner much protection. However, Canadian law also recognizes that the right to free expression does not confer a licence to ruin reputations.
In the end, the court upheld the anonymous poster’s privacy and freedom of expression rights and refused to order the disclosure of their identities. The judge decided that that because the plaintiff didn’t specify the defamatory words, she failed to establish a prima facie case of defamation. As well, the court also ruled for the defendants because when applying the Warman factors, the defendants had a reasonable expectation of anonymity, the plaintiff made insufficient efforts to try to identify them and because the plaintiff had not established a prima facie case, the public interest favouring disclosure does not outweigh the legitimate interests in freedom of expression and the right to privacy of the persons sought to be identified.
The plaintiff is a lawyer and a director of legal affairs at Quebecor Media Inc. in Toronto. Blog postings containing what were determined to be prima facie (second Warman factor) defamatory comments about him were made in the spring of 2010 and sent via the anonymous defendant’s e-mail to the plaintiff’s employer. Manson’s counsel was unsuccessful in their efforts to have the posts removed until a court order was granted to have Google, the blog’s host, provide plaintiff’s counsel with subscriber information and transactional data regarding the blog and the defendant’s e-mail account. Now a new blog (the “Mirror Blog”) has appeared, containing statements similarly defamatory as those on the original blog.
Applying Warman’s factors this time, the court held for the plaintiff. They found that absent a competing value such as freedom of expression with regards to political speech, like in Morris v. Johnson et al (above), defendants can not have a reasonable expectation of anonymity in the face of defamation. Anonymity should not be uniformly expected or ensured simply because the Internet is used as the defamatory communication tool. The plaintiff had also demonstrated considerable effort in identifying the defendant(s), including obtaining an order against Google to produce the identity information and unsuccessful inquiries of University of Toronto.
And in considering whether the public interest of disclosure outweighs the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified, the court sided with the plaintiff, noting in Warman “there is no compelling public interest in allowing someone to libel and destroy the reputation of another while hiding behind a cloak of secrecy.”