Connie & Mark Fournier of FreeDominion.com accepting the Prestigious “George Orwell Award” at the 25th Annual George Orwell Dinner in Victoria, B.C. sponsored by lawyer Douglas Christie and the Canadian Free Speech League, August 2009.
FOR IMMEDIATE RELEASE
New Law Protects Internet Privacy Rights – Warman vs Fourniers and John Does
On April 8, 2010, a precedent-setting case regarding internet law was heard in the Ontario Divisional Court.
The case was an Appeal of a lower court motion decision in the case of Warman vs Fourniers and John Does. The ruling being appealed stated that the defendants were to turn over personal information such as IP addresses and email addresses for anonymous posters who were alleged to have defamed the plaintiff. The defendants’ position was that online anonymity should be protected until it is clear that there is a strong case that a “John Doe” has broken the law.
The Divisional Court decision that was released this afternoon changed the rules of disclosure in civil litigation so that plaintiffs must now prove a prima facie case against John Does before site administrators are required to turn over personal information about them. The ruling states, in part:
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….
…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.
The text of the decision can be read here: http://www.freedominion.com.pa/images/appeal_ruling.pdf
This case is a huge step forward toward changing the law to accommodate new technology.
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From Marc Lemire:
Freedom of Speech for Anonymous Posters upheld. Richard Warman loses appeal and ordered to pay $10k in costs
 Returning to the decision of the motions judge, it would appear that he did not have the benefit of the extensive submissions on these issues provided to the Court by the two interveners in this proceeding. Notwithstanding, it is clear that he was alert to the need to take into consideration that privacy interests of the unknown alleged wrongdoers. It does not appear, however, that the need to consider the interest in freedom of expression was raised by the parties or was otherwise considered by the motions judge.
 In addition, the motions judge did not take into consideration whether the Respondent had established a prima facie case of defamation before ordering disclosure of the documents sought by the Respondent. In our view, the omission to do so constituted an error of law.
 Accordingly, the appeal is allowed and the matter is remitted to a different motions judge for re-consideration based on the principles set out above.
 The interveners do not seek costs in respect of this appeal. The appellants [Mark and Connie Fournier] are entitles to costs on a partial indemnity basis payable by the Respondent [Richard Warman] in the amount of $10,000 on an all inclusive basis in respect of the motion, leave to appeal and the hearing of the appeal.
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 CCLAÃ¢â‚¬â„¢s concerns regarding privacy and freedom of expression, stating that Ã¢â‚¬Å“[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.Ã¢â‚¬Â
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 CCLAÃ¢â‚¬â„¢s factum click here.
To read the CourtÃ¢â‚¬â„¢s decision click here.
Court Decision Protects Online Anonymity
The Ontario Divisional Court released a unanimous decision today that will protect the anonymity of online speakers.Ã‚Â The court held that before the identity of anonymous online users accused of defamation can be revealed, the plaintiff must convince the court there is an adequate basis for ordering such disclosure.Ã‚Â This overturns a lower court’s decision that identities must be disclosed automatically.