CIPPIC Factum for the John Doe Appeal - Excellent Read!

[Connie Fournier]

I am heading out to school so I don't have a lot of time to write about this, but I want you to have the chance to read the factum that the CIPPIC has submitted for our case next week. They raise some important points regarding online anonymity, and I can tell by reading this that they are going to be awesome in Court!

Please try to get out to see it on April 8th, if you are in the Ottawa area (or can get there!)

http://www.freedominion.com.pa/images/cippic.pdf

[Narrow Back]

This is a very relevant and interesting read.

The Cloak of Online Anonymity Threatened
April 3, 2009 by Adrienne Ng (IPilogue Editor)

Richard Warman is an Ottawa-based lawyer active in human rights law and is well known for initiating complaints against white supremacists and neo-nazis for Canadian Human Rights Act violations in the realm of the Internet. One of Warman’s most recent targets is the controversial online forum, FreeDominion.ca. In the action, Warman claims damages for allegedly libelous and defamatory remarks made by anonymous posters. In the course of this action, Warman brought a motion to require the owners of FreeDominion.ca to produce relevant documentary information that would be used to identify eight John Doe Defendants.

Warman succeeded on this motion, and on March 25, 2009, in its decision of Warman v. Fournier, the Ontario Superior Court of Justice ordered the disclosure of all personal information, including name, email and IP address, of the eight anonymous posters to the website. While the owners of FreeDominion.ca argued that disclosure should only be warranted if a prima facie case of defamation is established, the Court relied heavily on the discovery provisions (Rule 30.01(1)(a) specifically) of the Ontario Rules of Civil Procedure. The Court stated that “the Affidavit of Documents must include a list of the names and addresses of the persons who might reasonably be expected to have knowledge of the matters in issues in the action, unless the court orders otherwise.”

The salient issue then, in cases like these, is when it would be appropriate for a court to “order otherwise.” The court’s consideration of how the disclosure rules should be balanced with an individual’s privacy rights online should be made in the context of the Charter’s section 2(b) guarantees of freedom of thought, belief, opinion and expression. This is something that the Court did not do. The risk that a court order can be easily obtained to force disclosure of the identity of an anonymous poster can indirectly affect the values enshrined in section 2(b) of the Charter.

As Michael Geist noted in his commentary, to ensure that the rules relating to disclosure are not applied in a vacuum, it is imperative for courts to strike a proper balance between the rights of a plaintiff against defamation and the privacy and free speech rights of the anonymous poster. This balancing act would require a high threshold of establishing prima facie evidence of defamation. Otherwise, anonymous posters online are at risk of having their identity disclosed on the basis of a plaintiff’s mere suspicion.

While American decisions are persuasive at best, the notion that the rights of the plaintiff against defamation and the privacy and free speech rights of the defendants must be balanced are explicitly manifest within them. The Wise Law Blog mentions some relevant cases. For example, the Maryland Court of Appeals, in its decision of Independent Newspapers, Inc. v. Zebulon J. Brodie stated that “the court must weigh the anonymous poster’s right to free speech against the strength of the defamation case and the necessity of disclosing the poster’s identity.” Another example is the Supreme Court of the State of New York’s decision of Greenbaum v. Google where the court refused a plaintiff’s request for disclosure of an anonymous blogger’s identity, because the plaintiff had not established a prima facie case of defamation.

Although the Court does consider some public policy issues within the Canadian context, the court does this by reducing the case at hand into one involving a plaintiff who is an anti-hate speech advocate, and defendants whose “website is so controversial that it is blocked to employees of the Ontario Public Service.” This is a relatively bold statement for the court to make, since rather innocent websites like Facebook are similarly blocked. In any event, would it not be more appropriate for the Court to do the requisite balancing of plaintiff and defendant rights, as general members of society, regardless of their nature and characteristics?

The Warman decision sets a dangerous precedent. As noted in the Wise Law Blog, this decision indicates that there is no evidentiary standard or threshold that must be met to establish a justification for disclosure. It is almost as if the entitlement of disclosure is triggered simply by the commencement of legal proceedings. The risk that identity can be disclosed so easily also threatens one of the fundamental tenets of the wonders of the Internet, and that is the ability to remain anonymous.

http://www.iposgoode.ca/2009/04/the-clo ... hreatened/

The comments after the article should be read too.

[Connie Fournier]

i. Privacy in Online Anonymity

[14] In Irwin Toy v. Doe, the court stated that without appropriate safeguards in the discovery process, “the anonymity of the internet could be shattered for the price of the issuance of a spurious Statement of Claim and the benefits obtained by the anonymity lost in inappropriate circumstances.” Behind the veil of online anonymity, much may be hidden. It is “possible to learn where one works, resides or shops…financial information, the publications one reads and subscribes to and even specific newspaper articles he or she has browsed.” The Supreme Court recently noted in R. v. Morelli the degree to which our lives are increasingly captured and recorded online and in electronic format. Anonymous online activity in particular can now include political discussions, social interactions, or diary-like blog postings recording intimate personal details. This phenomenon is making it “difficult to defend against the loss of individual privacy.” Anonymity is an important social value, underpinned by ss. 8 and 2(b) of the Charter, to be protected diligently in discovery in spite of this increasing electronic presence.

BMG, (F.C.A.) at para. 4; Carter (N.B. Q.B.) at paras. 29, 31-33; Irwin Toy Ltd. v. Doe, [2000] O.T.C. 561 (Ont. S.C.) at para. 17; R. v. Morelli, 2010 SCC 8 (S.C.C.) at paras. 2-3

[15] Debates over protection of online anonymity typically focus on disclosure of online identifiers such as IP addresses, Email addresses, as well as customer name and address information that accompanies them. Courts that view such identifiers in isolation find there is little or no expectation of privacy in the identifiers themselves, stating no one expects names or the fact an individual has an Email or Internet or message board subscription to be kept personal. What these courts ignore is the context in which such identifiers are released – it is not just the Email address or name that is revealed, but the link between that identifier and the “wealth of personal information” already associated with it. Such data, while perhaps not highly private in itself, rapidly becomes at the point of identification “the means by which a biographical core of personal information is assembled” and as such attracts reasonable expectations of privacy.

[Mark Fournier]

This is why we appealed and why we must win our appeal next week in Ottawa. We hope to see people there to watch this happen.

[TomFoolery]

....the court does this by reducing the case at hand into one involving a plaintiff who is an anti-hate speech advocate, and defendants whose “website is so controversial that it is blocked to employees of the Ontario Public Service

It still very much bothers me that the judge opined on the TWO statements without a basis in evidence.

These are simply assertions offeredd without evidence or proof. Gotta love it when a judge uses heresy to frame his ruling.

[Mark Fournier]

....the court does this by reducing the case at hand into one involving a plaintiff who is an anti-hate speech advocate, and defendants whose “website is so controversial that it is blocked to employees of the Ontario Public Service

It still very much bothers me that the judge opined on the TWO statements without a basis in evidence.

These are simply assertions offered without evidence or proof. Gotta love it when a judge uses heresy to frame his ruling.

This part of Justice Kershman's ruling is problematic on many levels. I believe it unfairly taints us in the eyes of any judge who later reads it. It is unfair, biased and factually inaccurate. I would like to see it removed from the record but that's probably not possible.

[LAR]

Governments block access to all sorts of sites on the internet where their employees are concerned. And for all sorts or reasons. It would be interesting to find out how Freedominion found itself in that category. It could be as simple as blocking all messageboards or reacting to one complaint from a vexatious individual.

[Mark Fournier]

Governments block access to all sorts of sites on the internet where their employees are concerned. And for all sorts or reasons. It would be interesting to find out how Freedominion found itself in that category. It could be as simple as blocking all messageboards or reacting to one complaint from a vexatious individual.

Free Dominion was not blocked by the public service for being controversial or for any other reason. This is a glaring factual error in the ruling. IT departments don't waste their time running around the internet looking for websites that they deem to be so controversial that they should be blocked, they block websites that are so popular that their employees are accessing them using company (or in this case, government) resources.

There was no need for this part of the ruling because this motion wasn't supposed to be about the judge's opinion of the two parties it was supposed to be about whether the law says we have to disclose private and confidential information to Richard Warman. This part of the ruling can only be viewed as a message that Justice Kershman was sending along to any other judge who would be involved in this case.

One of the reasons we appealed this ruling is that we wanted a ruling based on law rather than on the political opinions of the judge.

[Fabulous Fred]

the controversial online forum, FreeDominion.ca.

What on earth is even remotely controversial about FD??

It is a civil and laregely respectful forum.

I post elsewhere and the standards of FD could not even be aspired to at this place. It is savage, confrontational, combative mostly left and far left place with hundreds of threads.

That isn't "controversial"??

[Mark Fournier]

This is hardly central to the case or the appeal but the most important part of it is that Justice Kershman went outside of the evidence presented to make this part of his ruling. No evidence was presented by either side in any form that touched on the characters of either party or mentioned anything about the Ontario Public Service or Free Dominion being banned from anywhere. That wasn't what this motion was about. Justice Kershman got factually incorrect information from some other source and based on that information added a very biased and completely unnecessary characterization of the parties to his ruling.

[TomFoolery]

I don't understand why that specific part of the ruling wasn't part of the appeal. Oversight?

Also, I don't understand why such disgusting? play in the courts wasn't brought to the attention of the regulatory body that governs the behaviour of judges.

[TomFoolery]

the controversial online forum, FreeDominion.ca.

What on earth is even remotely controversial about FD??

It is a civil and laregely respectful forum.

I post elsewhere and the standards of FD could not even be aspired to at this place. It is savage, confrontational, combative mostly left and far left place with hundreds of threads.

That isn't "controversial"??

There are some answers to be found in the Warman vs. Levant case that Connie posted a few days ago.

Notice that the lawyer for the plaintiff didn't address case law or other mundane legalistic stuff that is the basis for arguing positions in Law.

His focus was on trying to paint Levant as fundamentally evil, associated with nazi's, etc., in the expectation that Levant would lose his legal standing because of being an 'outsider' from the political mainstream.

That is the approach by people who believe rule in the Rule of Men, not the Rule of Law.

[Mark Fournier]

I don't understand why that specific part of the ruling wasn't part of the appeal. Oversight?

I would have liked it but there are so many much more important issues surrounding this motion and appeal that it just got lost in the shuffle. This part of the ruling is really only important to me and Connie, the other issues are much larger and are of public interest.

[TomFoolery]

I suppose there may be a silver lining to accidently leaving it stand. Assuming you win, of course.

It would be "Geez, even that far-right wing controversial website" has legal rights under the Law.

Of course, thats why lefties want to get rid of the law and rule by show trial.

As an aside, as we watch some of these issues meander their way through our system, and the little signs here and there of corruption - its not hard to see why the Communist system of the USSR became so awfully disgusting.

[Fabulous Fred]

There are some answers to be found in the Warman vs. Levant case that Connie posted a few days ago.

Notice that the lawyer for the plaintiff didn't address case law or other mundane legalistic stuff that is the basis for arguing positions in Law.

His focus was on trying to paint Levant as fundamentally evil, associated with nazi's, etc., in the expectation that Levant would lose his legal standing because of being an 'outsider' from the political mainstream.

That is the approach by people who believe rule in the Rule of Men, not the Rule of Law.

Has this ever worked??? I would find it astounding if slags and slurs had legal standing!