2011 May 30

Warman v. Wilkins-Fournier, 2011 ONSC 3023

[See also below the 2010 May 3 decision of the Divisional Court]

The Ontario Superior Court of Justice ordered the Fournier defendants to disclose to the plaintiff all relevant documents relating to the true identities of two “John Doe” defendants, “conscience” and “HR-101,” including (i) email addresses and all personal information used and submitted to the Freedominion website to register their access accounts and/or profiles, and (ii) the internet protocol addresses used by those “John Doe” defendants when making the specific postings complained of in the plaintiff’s statement of claim.

Applying the test prescribed by the 2010 May 3 decision of the Divisional Court, the Judge concluded that the public interests favouring disclosure outweighed the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified.

In this case, the John Doe defendants did not have a reasonable expectation that their identities would remain anonymous. The terms of their membership in Freedominion included the following: “…Freedominion will not be responsible for any illegal content that a member posts. Your FC alias is no protection. You can be called to account for what you publish. Free Dominion will not protect you. “Over-the-top” posts about public figures that test legal limits are unwelcome. If you post libelous or defamatory material, you are on your own. We take no responsibility for problems posters may cause for themselves.” The Court held that opting to use pseudonyms reveals an intention to remain anonymous but does not create a reasonable expectation in that result. Having regard to the terms of use agreed to upon their registration for access to the Freedominion website, the defendants could reasonably contemplate that their identities may be disclosed if they publish postings that are prima facie defamatory.

The Court also rejected the submission by the John Doe defendants that given the vast amount of hyperbole and exaggeration online, a reasonable person would not tend to take the postings of “conscience” and “HR-101” seriously. “…[G]iven the all pervasive nature of the Internet and its capacity to replicate defamatory messages, I do not find this argument persuasive. Whether or not the use of rude terms is common, does not speak to whether the [impugned term in this case] would be capable of lowering the plaintiff’s reputation in the eyes of a reasonable person. … Given the low threshold set for establishing prima facie defamation, I find the plaintiff has met his burden …”