Thursday, September 29, 2011

Canadian Perspective on Defamation on Anonymous Internet Message Board

In Warman v. Wilkins-Fournier, 2010 ONSC 2126 (CanLII May 30, 2011), the Plaintiff-Respondent commenced an action against the operators of an internet message board, and eight anonymous posters, for defamation in connection with comments made by those posters.  The Divisional court had heard an earlier appeal in this matter on May 3, 2010, when it held that the motions judge erred by not considering the anonymous posters’ right of freedom of expression, noting that the commenters’ decision to remain anonymous gave rise to a reasonable expectation of privacy.  The court also expressed concern with the potential “chilling effect on freedom of expression” resulting from disclosure.  The court remitted the case to a different motion judge for reconsideration.

Upon remittance, the new motions judge applied a four-part test developed by the Divisional court: 

1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; 2) whether the respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; 3) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and 4) whether the public interests favouring disclosure outweigh the legitimate interests of freedom and right to privacy of the persons sought to be identified if the disclosure is ordered. Warman v. Wilkins-Fournier, 2010 O.J. No. 1846 (CanLII May 3, 2010).

Relying on the terms of membership to the website to which the anonymous posters posted allegedly defamatory material, the motions judge on remittance found that the mere use of pseudonyms did not create a reasonable expectation of privacy.  The terms of membership stated, in pertinent part, that “[i]f you post libelous or defamatory material, you are on your own” and that “[y]our FC alias is no protection.”  The motions judge went on to find that a prima facie case of defamation had been established and that any remaining privacy interests were outweighed by the need to address potential defamatory postings, noting that the privacy intrusion in providing e-mail addresses, registration information, and IP addresses was for the “limited purpose” of effecting service.

The Warman court’s decision to require a prima facie showing of the underlying claim before allowing a plaintiff to discover the identity of an anonymous online speaker comports with the tact taken by several courts in the United States, including the 9th Circuit.  In In re Anonymous Online Speakers, 2011 U.S. App. LEXIS 487 (9th Cir. Jan. 7, 2011), the 9th Circuit opined that “[a] number of courts have required plaintiffs to make at least a prima facie showing of the claim for which the plaintiff seeks the disclosure off the anonymous speaker’s identity.” The Court also noted that, in each case it reviewed, the initial burden rested on the party seeking discovery.  While U.S. courts have applied varying levels of showing, the lowest being “good faith,” the bar that must be cleared is tied to the nature of the speech at issue, and is unaffected by the fact that it occurs online. Id. at *15 - *18.  The dispute before the 9th Circuit, much like the dispute in Warman was over the propriety of using a particular standard on the facts presented.  In Warman, the original motions judge used a “good faith” standard, which is the lowest possible, and was reversed by the Divisional court.  Examining the unsettled nature of the law, 9th Circuit declined to find “clear error” in the District Court’s use of the highest standard, which requires plaintiff to survive a hypothetical motion for summary judgment before becoming entitled to information revealing the speaker’s identity, though the 9th Circuit did note that such a standard was not appropriate in the instant case.

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