Monday, May 3, 2010

CCLA welcomes Divisional Court decision to protect internet anonymity


CCLA welcomes Divisional Court decision to protect internet anonymity


The Divisional Court released its decision in the case Warman v. Fournier, Fournier and John Does 1-8, which dealt with anonymous internet commentators. The question before the Court was whether a party to a lawsuit should be automatically forced to disclose identifying information about an anonymous commentator simply because a statement of claim had been filed. The Court recognized CCLA’s concerns regarding privacy and freedom of expression, stating that “[if] disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritrous action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues.”

CCLA had argued that, while the internet should not be used as a shield to allow individuals to break the law, neither should a simple request to the courts result in the disclosure of identifying information. Highly personal communication occurs online. Indeed, many use online anonymity as a way to explore difficult issues (political, legal, sexual, medical, etc.) that they might not feel free to explore publicly. The internet is a highly accessible democratic forum, with virtually limitless opportunities for discussion and debate. Court orders that force individuals to reveal the identity of those who choose to participate anonymously could chill this rigorous discussion, particularly on sensitive personal topics. Anonymity on the internet should not be compromised simply because a private individual has filed a statement of claim.

In a unanimous ruling, the Court set out four considerations which must be taken into account to determine whether disclosure should be ordered:

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.

To read CCLA’s factum click here.

To read the Court’s decision click here.