Case Report – Court orders disclosure of anonymous message board users’ identities

On March 23rd, the Ontario Superior Court of Justice ordered the owner/operator of a right-wing internet message board to disclose the identities of eight John Doe defendants who had posted commentary about lawyer Richard Warman.

There are two significant aspects of the decision.

First, the Court seemed to distinguish the BMG case (where the Federal Court of Appeal endorsed a protective balancing test) on the basis that the plaintiff filed an action directly against the website owner/operator. Website owner/operators may question whether their status as first or third parties should really make a difference.

Second, the Court relied on recent search and seizure cases that have endorsed voluntary identification of internet users by ISPs to police based on permissive ISP terms of service. It used these cases to draw a general conclusion that individuals cannot reasonably expect online anonymity. Though specific terms of service should govern, this aspect of the decision illustrates that ISP policy favouring disclosure to police may affect users’ right of anonymity as against potential civil claimants.

Hat tip to Michael Geist for his leading post.

Warman v. Wilkins-Fournier (23 March 2009, Ont. S.C.J.).

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