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November 18, 2010

Internet posters beware!

by Steven Z. Raber

One characteristic of the Internet, lauded by some and loathed by others, is that much of the information posted is done so anonymously. Some argue this is a positive development as it allows people to freely publish their points of view. Others detest the anonymity that pseudonyms give to those posting on the Internet, as the usual limits of civility, fear of recrimination, and even fear of defamation actions don’t apply.

Recently, in a defamation case before a three-judge panel of the Divisional Court of the Ontario Superior Court of Justice, the plaintiff sought an order requiring the administrators and moderators of a message board to provide subscriber data in respect of eight “John Doe” defendants in the action. The eight John Doe defendants allegedly posted defamatory messages on the message board using pseudonyms.

The court first considered whether it had to take into account any protections provided by the Canadian Charter of Rights and Freedoms. The court determined that the right of freedom of expression, guaranteed by the Charter as well as privacy interests recognized by the Charter, were both engaged. The court noted the Supreme Court of Canada has stated that freedom of expression is among the most fundamental of rights of Canadians, based on Canadian values, including individual self-fulfillment, finding the truth through the open exchange of ideas, and the political disclosure fundamental to democracy.

The Supreme Court has also made it clear that freedom of expression must be given consideration in defamation claims. In the context of a defamation claim, giving proper weight to the value of freedom of expression on matters of public interest requires a broadening of the defences available with respect of the communication of facts it is in the public’s interest to know.

The court noted, too, the Supreme Court’s recognition that privacy has also been accorded constitutional protection. The courts have developed a test to determine whether, in any particular case, there is a reasonable expectation of privacy based on the context of the disclosure and the totality of the circumstances.

Therefore, privacy interests had to be taken into account in favour of both the plaintiff and the John Doe defendants. The reputation of an individual, the very issue in a defamation case, is intimately connected to that individual’s right to privacy. It is recognized that the right to privacy of the plaintiff may be affected by the allegedly libelous postings.

At the same time, the John Doe defendants, the persons alleged to have made the libelous postings, arguably had a reasonable expectation of privacy. They expressly elected to remain anonymous when they made their postings.

Ultimately, the court, having reviewed various earlier decisions from Ontario, from the Federal Court of Appeal, and from the Supreme Court of Canada, synthesized them and determined that, as a starting point, the plaintiff must establish a prima facie case against the John Doe defendants before the court could consider whether the information sought ought to be disclosed.

In addition, although the court noted the importance of maintaining the ability to post on the Internet anonymously to avoid a “chilling effect on freedom of expression that will result from disclosure,” it noted that the need to establish the elements of defamation on a prima facie basis would be a sufficient safeguard. This is particularly so as, in the words of the court, “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 court concluded that the requirement to demonstrate a prima facie case of defamation was sufficient to further the objective of establishing an appropriate balance between the public interest in favour of disclosure on the one hand and legitimate interests of privacy and freedom of expression on the other.

Therefore, Internet posters beware—if there is sufficient information for a person to make out a prima facie claim of defamation based on an Internet posting, the veil of anonymity a pseudonym provides will be ordered lifted by the courts.