Case Report – Court says suing message board operator not an easy means to identify anonymous internet users

Yesterday the Divisional Court held that a motions judge erred in requiring 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.

The case is about whether and when civil rules can be used to identify anonymous internet users without restrictions that are based on countervailing Charter-protected interests such as privacy and freedom of expression. The need to balance interests has been recognized in the test for production of identifying information from non-parties. In this case, the party in custody of the identifying records was a named defendant and subject to a routine duty to produce “all documents relevant to any matter in issue in the action.”

The Court held that the routine production duty did not preclude a balancing of interests and held that the motions judge ought to have considered the following four issues before ordering production (my paraphrase):

1. whether the unknown alleged wrongdoers had a reasonable expectation of anonymity in the particular circumstances;
2. whether the plaintiff had established a prima facie case and was acting in good faith;
3. whether the plaintiff had taken reasonable steps to identify the unknown alleged wrongdoers and had been unable to do so; and
4. whether the public interests favouring disclosure outweighed the legitimate interests of freedom of expression and right to privacy of the unknown alleged wrongdoers.

The Court held that the prima facie standard of proof is appropriate when the order threatens an individual’s ability to speak anonymously. It also held that notice to unnamed alleged wrongdoers may be required, but that generally little would be added by such a step in defamation proceedings given what is required to prove a prima facie case of defamation.

This case is clearly about the rules for asking a Court to unmask anonymous speakers, though it also raises questions about what other circumstances interests such as privacy may be raised as a basis for restricting the production of relevant records.

Hat tip to Tamir Israel for providing an early copy of  the case.

Warman v. Fournier et al, 2010 ONSC 2126.