Ontario Court on legalities of anonymous posts
p2pnetview – P2P | Freedom | Security:- The Internet has given rise to thousands of online chat forums, where participants can sound off on the issues of the day often shielded by the cloak of anonymity. Anonymous speech can be empowering – whistleblowers depend upon it to safeguard their identity and political participants in some countries face severe repercussions if they speak out publicly – but it also carries the danger of posts that cross the line into defamation without appropriate accountability.
Striking the balance between protecting anonymous free speech on the one hand and applying defamation laws on the other sits at the heart of a new Ontario Superior Court decision released last week. The case involved postings about Phyllis Morris, the former mayor of Aurora.
In 2010, the website auroracitizen.ca featured an online chat forum where participants discussed a local election campaign. Morris, who was defeated in the election, launched a legal action during the campaign against the site, the chat forum moderators, its lawyers, and website host to order them to disclose the identity of three anonymous posters. Morris did not identify the specific defamatory words, but claimed that six posts were defamatory.
The court was therefore not asked to determine whether the posts at issue were in fact defamatory. Rather, it simply faced the question of whether it should order the disclosure of personal information about the posters themselves so that Morris could proceed with a defamation lawsuit.
The court rightly identified the core question as balancing “the competing interests of privacy, the public interest in promoting the administration of justice by providing the Plaintiff with the information sought to pursue her claim and the underlying values of freedom of expression and political speech.” Moreover, the court emphasized that the posts involved political speech, which is particularly deserving of protection.
In sorting out the balance, the court relied on a legal test established in 2010 Ontario defamation case that similarly involved anonymous online postings. That case identified four factors to consider: (1) Whether there was a reasonable expectation of anonymity; (2) Whether the plaintiff established a prima facie case of wrongdoing by the poster; (3) Whether the plaintiff tried to identify the poster and was unable to do so; and (4) Whether the public interest 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.
In this particular instance, the court sided with the posters and refused to order the disclosure of their identities. Since the plaintiff (who has since indicated she plans to appeal) did not identify the specific defamatory words, she failed to establish a prima facie case of defamation. Moreover, the court also ruled that the posters had a reasonable expectation of anonymity and that there were insufficient efforts to try to identify them.
The case solidifies the emerging test for identifying anonymous posters on the Internet, establishing a balance that sends a message that anonymous speech is worthy of protection, but that the law will not support hiding your identity with the intent to defame.
Given the court’s careful analysis of the speech and privacy issues, the case also provides a reminder of the value of court oversight before ordering the disclosure of personal information. This may be in jeopardy since the government is currently contemplating lawful access legislation that require such disclosures without court oversight, tilting the balance away from privacy and creating a potential chill for those speaking out online.
Michael Geist – Michael Geist’s Blog
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist @ uottawa dot ca]
August 7th, 2011 at 8:39 am
The lesson here: If you’re going to slag someone who is litigious, or otherwise want to be REALLY anonymous, use TOR, ya lazy bastards. Then feel free to plug away, call people names, spread rumours, threaten people’s lives, etc etc. All the fun stuff.
If you use TOR, or a trusted VPN, you make the courts and everything else IRRELEVANT. Then it doesn’t matter what the laws or anyone else says. Why subject yourself to the petty whims of bubble-butt busy-body authoritarians if you don’t have to?
I think people are really waking up to the fact that the interbutts are not anonymous unless YOU take proactive steps to make it that way.
I urge everyone to familiarize yourself with anonymizing technologies, and then tell everyone what you REALLY think.
August 7th, 2011 at 12:55 pm
@RW:
Or you could NOT threaten people or say things that are equivalent to mudslinging?
Just because there’s an opportunity doesn’t mean you really need to take it. Telling someone what you really think doesn’t have to be rude. You can show greater intelligence by responding or commenting without such phrases “oh, that MP sucks.” That’s what the courts are trying to protect against.
If you are a whistle-blower, why would you just list profanity and insults against executives? What good would that do?
So, “call people names, spread rumours, threaten people’s lives…” is really not want we want protection against because none of that is actually helpful with whistle blowing or exposing someone’s corruption.
August 8th, 2011 at 10:40 am
Robert, pull the stick out of your butt, as you’ve missed the point entirely.
I’ve got news for you: Free speech isn’t something to be exclusively permitted when it falls within your narrow little view of what is ‘acceptable’ free speech. It’s not just for whistle-blowers, it’s not just for exposing corruption, it’s for ANYTHING that ANYONE wants to say, fact or fiction, respectful or rude, and regardless of if it meets the approval of moralists such as yourself. THIS is the reason anonymous speech is the cornerstone of free speech.
Regulated speech != Free speech, no matter what spin you put on it. If ANYONE gets to decide what is acceptable and impose punishment for uttering what is not, then only a gullible fool would call it “free speech”.
It’s people like you that want to impose your morals and ethics on others and then ride in on your high-horse to sit in petty judgement, and this is why it’s best to simply bypass such nonsense and be fully anonymous. Then there is no worry about who likes what you have to say and who doesn’t. The moralists can sit and spin.
If someone wants to do some irrational “mudslinging”, they should have the ability to do it anonymously, and WILL have this ability whether you like it or not. Go back to kindergarten and suck your thumb behind teacher’s skirt if you need protection from all the free speech and information. Maybe you can join this politician lady that filed the lawsuit mentioned in the article.
And BTW, if you think the “courts are trying to protect against” … “oh, that MP sucks”, then you REALLY have no clue. Perhaps you need to actually read the decisions that have been penned by the justices to truly understand the crux of these cases.
Regardless, no matter how much it upsets you, internet anonymity has been available for years and is only getting more and more practical for the little people. Oh the humanity! LOL
August 8th, 2011 at 6:52 pm
@UBB:
You cast judgement when I simply suggest that people do not abuse their power or risk losing it.
In fact, I refuse to reply to the rest of your comment as it provides no value whatsoever. You have done nothing but attempt to flame, launch false accusations, and cast phony, ill-informed judgements. Your comments are so full of ignorance and self-discredidation it is utterly astounding.
You’ve formed no valid arguments and instead choose ad-homimem attacks, slippery slope fallacies, and even a hint of a strawman fallacy.