2010 May 3

Warman v. Wilkins-Fournier, 2010 ONSC 2126

The Ontario Superior Court of Justice, Divisional Court, set aside an order of a judge in chambers which directed the defendants to provide IP addresses for allegedly defamatory postings made by John Doe defendants as well as the e-mail addresses with which they registered as users of an Internet message board and any associated data provided at the time of registration. The matter was sent back to the judge in Chambers for reconsideration on the basis of the following principles: Before deciding whether the make such an order, the Chambers judge should consider: (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 of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

The Divisional Court described the intersection of the plaintiff’s interest in protecting reputation and the defence interests in protecting privacy and freedom of expression that weighed in favour of these principles:

“In this case, it is clear that both the right of freedom of expression, guaranteed by section 2(b) of the Charter, as well as privacy interests that are also recognized by the Charter, are engaged. … Privacy interests arise for consideration in the present case in favour of both the plaintiff and the John Doe defendants. As the Supreme Court ruled in Hill, the good reputation of an individual is intimately connected to his right to privacy, and thus the right to privacy of the plaintiff may be affected by the allegedly libelous postings. At the same time, the John Doe defendants who made the allegedly libelous postings arguably had a reasonable expectation of privacy, having expressly elected to remain anonymous when they did so …

In Irwin Toy Ltd., which arose in the context of a defamation action, Wilkins J. suggested at para. 11 that, in keeping with the protocol or etiquette developed in the usage of the internet, some degree of confidentiality regarding identifiers of the originator of a message, ‘has significant safety value and is in keeping with what should be perceived as being good public policy.’ His statement is consistent with an implicit understanding of citizens that, to some degree at least, their identities will be protected when they use the internet anonymously. In Cuttell at para. 27, the court also held that there was a reasonable expectation of privacy in a party’s subscriber information which linked the party’s identity to internet usage. “In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the elements of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.”

Finally … there may be circumstances in which it is appropriate that notice of a motion for disclosure be given to a John Doe defendant. The case law suggests that any such determination is to be made on a case-by-case basis, and we agree. In a defamation action, little would generally be added by such a step, because any defences that might be raised are not relevant to a determination as to whether a prima facie case has been made out. For such purpose, a plaintiff is required to establish only the elements of defamation within its control. However, in other cases a John Doe defendant may have compelling reasons for wishing to remain anonymous that are not immediately obvious, such as a risk to personal safety, and such grounds could not be put before the court absent notice.”