RSS FeedProtecting internet anonymity: the case for providing notice to anonymous defendants in defamation cases
An open issue in Canadian internet defamation law is whether courts should require that anonymous defendants be given notice of, and an opportunity to oppose, applications to compel the disclosure of their identities by third parties such as websites and internet service providers (“ISPs”). Because applications to compel disclosure are generally left unchallenged by third parties who would rather evade the costly cross-fire of litigation, courts have tended to review such applications ex parte. The concern in these cases is that anonymous defendants may be stripped of their anonymity – and thereby subjected to embarrassment, social stigma, or harm to their career prospects – all without an initial opportunity to anonymously submit a written response or retain counsel to oppose the application. This post discusses the status of a notice requirement in Canadian, American, and English law and evaluates the different approaches.
1. Canadian Law
Only one Canadian case has commented on the appropriateness of a notice requirement. In York University v. Bell Canada Enterprises, [2009] O.J. No. 3689 (S.C.J.) (“York University”) a plaintiff sought pre-action discovery by way of an equitable bill of discovery known as a Norwich Order. The Ontario Superior Court of Justice granted the Norwich Order, which required ISPs to disclose information necessary for the plaintiff to obtain the identity of the anonymous author of allegedly defamatory emails and web postings. Justice G.R. Strathy noted that it might be appropriate to impose a notice requirement, but declined to do so without providing reasons:
[I]t may be appropriate, in a given case, to require that the unknown publisher of the offending material be given notice of the proceedings. It does not appear to have been done as a matter of course in other Norwich order cases and I did not consider it necessary to do so in this case.
York University was discussed by other commentators in two excellent blog posts on Slaw: the first generally outlining the case, and the second commenting on specific points including the notice issue.
2. English law
The appropriateness of a notice requirement has received more attention in English law. In Totalise plc v The Motley Fool, [2001] E.M.L.R. 29 (H.C.), [2002] 1 W.L.R. 1233 (C.A.) (“Totalise”), the English Court of Appeal described the rationale for a notice requirement. In that case, Justice Owen of the English High Court first granted a Norwich Order that compelled a website operator to reveal the identifying information of an anonymous defendant that posted allegedly defamatory statements about the plaintiff. When the case was appealed on the issue of costs, Justice Aldous noted in obiter that it would have been desirable to require the third party to give the anonymous defendant notice of the application and then allow the anonymous defendant to make written submissions through the third party in order to better inform the court’s decision:
It is difficult to see how the court can carry out this task [i.e. whether to grant the requested order] if what it is refereeing is a contest between two parties, neither of whom is the person most concerned, the data subject; one of whom is the data subject’s prospective antagonist; and the other of whom knows the data subject’s identity, has undertaken to keep it confidential so far as the law permits, and would like to get out of the cross-fire as rapidly and as cheaply as possible. However the website operator can, where appropriate, tell the user what is going on and to offer to pass on in writing to the claimant and the court any worthwhile reason the user wants to put forward for not having his or her identity disclosed. Further, the court could require that to be done before making an order. Doing so will enable the court to do what is required of it with slightly more confidence that it is respecting the law laid down in more than one statute by Parliament and doing no injustice to a third party, in particular not violating his convention rights.
Although the obiter from Totalise is compelling, English courts have yet to impose a notice requirement. In the recent case of Sheffield Wednesday Football Club Ltd v. Hargreaves, [2007] EWHC 2375 (Q.B.) a justice of the English High Court dealt with a similar case and, after considering Totalise, concluded in the absence of reasons that
It did not seem to me that this was a case where I should require that the website users [i.e. the anonymous defendants] be contacted before making an order.
3. American law
American law, by contrast, strongly supports a notice requirement. In the leading case of Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. App. Div. 2001) (“Dendrite”), a New Jersey appellate court articulated a series of requirements for plaintiffs to meet before a court would order disclosure. The first of these requires that the plaintiff make efforts to notify the anonymous defendant that they are the subject of an application for an order to disclose their identities so that the defendants have a reasonable opportunity to respond:
We hold that when such an application is made, the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP’s pertinent message board.
Several notable American cases have adopted the same or similar notice requirements post-Dendrite: Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005); Mobilisa, Inc. v. Doe 1, 170 P.3d 712 (Ariz. Ct. App. 2007); Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (Ct. App. 2008) (“Krinsky”); Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) and Swartz v. Does (“Swartz“) (Swartz, the most recent of these cases, was discussed in a previous post).
4. Analysis
Although both English and American jurisprudence supports a notice requirement, the approaches differ: while Totalise advocates imposing the requirement on third parties, Dendrite and subsequent American cases have consistently imposed the burden on plaintiffs. The problem with the later approach is that plaintiffs are generally in a relatively poor position to give reliable notice because, unlike third parties, they lack access to the defendant’s contact information. As a result, Dendrite and subsequent American cases have merely required plaintiffs to provide indirect notice by posting on the ISP’s pertinent message board, by posting on the same website or medium used by the anonymous defendant to publish the statements at issue, or, if the statements originated in an email, by sending notice to the anonymous defendant’s email address. The concern with these types of notice is their unreliability. There is no guarantee that a defendant will check these sources, or that the website or medium will still exist by the time the plaintiff commences action. And, in the case of email, a similar concern still exists due to the increasingly common use of disposable email accounts that defendants may abandon after sending allegedly defamatory statements.
Yet, imposing the burden of notice on plaintiffs may have some notable benefits. Unlike the approach advocated in Totalise wherein third parties would directly notify anonymous defendants, plaintiffs under the Dendrite approach generally have no choice but to provide indirect notice by posting in a publicly accessible forum. The public nature of a plaintiff’s notice will expose the matter to the oxygen of publicity and may affect the extent of the plaintiff’s reputational harm, depending on the context. In some cases, public scrutiny might result in further reputational harm if the public perceives the plaintiff to be unjustifiably attempting to silence the anonymous defendant. In other cases, however, public scrutiny might serve to alleviate the existing reputational harm by calling into question the veracity of the statements. Third parties might even be persuaded to mount a defence against a plaintiff’s application in cases where there is significant public support in favour of an anonymous defendant but they lack the resources to defend their anonymity.
Another option is to require both the plaintiff and the third party to provide notice. Although this approach would increase the reliability of notice and preserve the beneficial qualities of plaintiff-based notice, the approach seems redundant in the absence of evidence to suggest that the benefits of dual notification outweigh the costs. This is likely one of the reasons why the California appellate court in Krinsky rejected the notion of requiring a plaintiff to provide notice where a third party had already voluntarily done so:
When ISPs and message-board sponsors (such as Yahoo!) themselves notify the defendant that disclosure of his or her identity is sought, notification by the plaintiff should not be necessary.
In summary, a notification requirement imposes a relatively light burden on plaintiffs or third parties while providing defendants with the valuable opportunity to defend their anonymity and better inform the courts’ decision. Although a plaintiff-based approach may have some ancillary benefits, a third party approach provides more reliable notice and should be preferred because it best furthers the primary rationale underlying notice requirements.
Originally posted on Defamation Law Blog
See-through body scanners are not as bad as they sound
According to media reports on Friday, the federal privacy commissioner approved the see-through airport body scanners. These machines show your naked body in Casper-the-ghost 3D on the security officer’s screen. Although the officer can easily see if you are a bikini model or a beer belly, the procedure is subject to restrictions and rules that create a good balance between security and privacy. Don’t be afraid of see-through scanners unless we hear some bad news about their health effects down the road.
The scanners are supposed to speed up and improve that irritating extra screening at the airport. So the first rule is they will scan you only if security officers select you for extra screening. The second rule is you still have the option of a physical pat-down. The scanners give travellers a choice between physical touching and having your x-ray nude body on the screen. If this is the case, then scanners don’t make your life more miserable. You are already in humiliating extra screening, where the officers had had the right to strip-search you even before the scanners were proposed.
The Canadian Air Transport Security Authority promised the privacy commissioner that the officer viewing your body on the screen will be in a separate room. That’s another restriction on security to protect your privacy. But it works only if that officer can’t learn your name or store the image of your body. Unless you have a gun on you or some plastic explosive in your shoes, the officers should not connect your personal information to the image or retain the image in their computers.
Airport see-through body scanners can speed up the humiliating extra screening. They give people who don’t like pat-downs a choice. And scanners seems to be an excellent security tool. As long as they are not required in addition to pat-downs and as long as officers can’t keep your personal information and images without probable cause, scanners seem to balance privacy with security well. Hopefully, you won’t need to go through extra screening, but if you do, the scanners may be just the way to breeze through it, especially if you are late for your flight.
Swartz v. Does: American and Canadian approaches to anonymity in internet defamation cases
A recent case illustrates that American jurisprudence is increasingly coalescing around a uniform approach to determine whether a plaintiff may compel the disclosure of an anonymous defendant’s identity in internet defamation cases. As discussed below, the Canadian experience has been different.
In Swartz v. Does (“Swartz”) (see: judgment) a Tennessee state court held that plaintiffs were entitled to discover the identity of an anonymous blogger that published allegedly defamatory statements about them. The case arose when the plaintiffs subpoenaed Google, the parent company of the blogging service used by the anonymous defendants (see: news article).
The decision is notable for Justice Brothers’ survey of the various standards previously applied by American courts and his ultimate application of the standard most protective of internet anonymity. This standard, established in Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. App. Div. 2001) (the “Dendrite Standard”) and commonly but perhaps misleadingly known as the “prima facie” standard, requires a plaintiff to meet several requirements. One of these requires the plaintiff to make a “substantial legal and factual showing” that the defamation claim has merit before a court will compel the disclosure of an anonymous defendant’s identity.
Justice Brothers considered this requirement of the Dendrite Standard and concluded that the plaintiffs had made a substantial legal and factual showing on each of the three elements of a defamation claim under Tennessee law. Interestingly, Justice Brothers proceeded to offer guidance for future litigants by providing a detailed description of how the plaintiffs met the requirement, which does not appear to be onerous:
Plaintiffs submitted and displayed several copies of the blog posts in question, and testified that the statements were publicly available for several months. Plaintiffs testified that the [allegedly defamatory allegations] are all false. Plaintiffs also testified that they experienced actual damages from the allegedly defamatory statements, including loss of business, harm to their reputations, emotional distress, and the costs of having to hire a security expert inspect their home [sic].
Swartz is yet another American case that has followed the increasingly prevalent Dendrite standard. Unfortunately, Canadian jurisprudence has yet to begin coalescing to the same extent. The scarce Canadian law on this issue, most of which comes from Ontario, indicates that plaintiffs have two ways to compel online service providers to reveal the identities of anonymous defendants:
- by seeking pre-action discovery by way of an equitable bill of discovery known as a Norwich Order; or
- by seeking pre-action discovery or production from the online service provider by bringing a motion under the applicable rules of civil procedure.
The requirements of each approach vary substantially. While the Norwich Order approach requires plaintiffs to establish only a bona fide case of defamation (see York University v. Bell Canada Enterprises, [2009] O.J. No. 3689 (S.C.J.) (see: previous post) and BMG Canada Inc. v. John Doe, [2004] 3 F.C.R. 241 (C.A.)), the alternate approach has generated different requirements depending on the rules of civil procedure under which the plaintiff brought their motion. In an early case, the court required the plaintiff to establish a prima facie case of defamation similar to that required under the Dendrite standard (Irwin Toy Ltd. v. Joe Doe, 2000] O.J. No. 3318 (S.C.J.)). Yet, in a more recent and controversial case, the court held that the plaintiff had no obligation to establish a prima facie or even bona fide case because the rules of civil procedure required disclosure to be automatic upon the issuance of a statement of claim (Warman v. Wilkins-Fournier, [2009] O.J. No. 1305 (S.C.J.)). Although these cases are distinguishable on the basis of differences in the applicable rules of civil procedure, more uniformity is needed to ensure that courts consistently strike an appropriate balance between privacy and reputational interests.
Also posted on Defamation Law Blog
Reputation Management Law is the Next Big Thing
Tony Wilson, of Boughton in Vancouver, wrote in this week’s issue of Lawyer’s Weekly,
Reputation matters… But it’s not just companies and trade-mark owners who have reputations to protect. We all do, and these days, much of our personal reputation is on the web for all the world to see.
Like many professionals, physicians in Canada operate by word-of-mouth referrals, largely based on the personal experiences of patients or other referring physicians. RateMDs has become an increasingly popular site for patients to share experiences about their physician.
It’s become enough of a concern to physicians that Sam Solomon provides some advice to MDs in this month’s edition of Parkhurst Exchange:
- Ask for the review to be taken down
- The Medical Justice approach of providing patients a contract allowing them to only post reviews on sites that confirm poster identity
- Sue
- Encourage patients to post positive reviews
- Use the criticism as an opportunity to improve practice
It’s unclear whether option 2) would hold up in court, and 1) is rarely effective, either due to confidentiality issues, site administrative policies, or simple refusal.
RateMDs was founded by the same people who made RateMyProfessors.com, RateMyTeachers.com, and the Ratingz.net network of rating sites that includes LawyerRatingz.com. It seems quite a few of my law professors are up there. A quick survey reveals that many Canadian attorneys have been rated, and most not favourably.
Assuming that the only people to ever review professionals are clients who have utilized their services is far too presumptuous. Competitors, business rivals, people with personal vendettas, and even opposing parties in lawsuits can pose as a client in an attempt to portray the person in a negative light.
It can and has happened. Solomon points to the case of Dr. Mohamed Foda of Leduc, Alberta, who forced RateMDs to provide information about a negative poster through the California Northern District Court in Foda et al v. RateMDs, Inc. On April 28, 2008, the Edmunton Sun covered the story,
An Edmonton urologist has launched a $12-million defamation lawsuit against two unidentified people for allegedly posting bogus poor ratings about him on the California Internet site RateMDs.com. In a March 31 statement of claim, Dr. Mohamed Foda alleges the postings were not made by actual patients of his, but by someone who has a “malicious” motive to harm his medical business, and states he will seek to identify the unknown defendants by searching for their computer identifying information. Foda claims the defamatory comments have caused irreparable harm to his reputation and medical practice and caused him emotional distress and anxiety.
The posts in question stated:
“This doctor prescribed me an antibiotic that causes birth defects after I clearly told him I was 4 months pregnant!! Apparently he made a ‘mistake.’” — Posted on RateMDs.com on October 1, 2007
“I found Dr Foda to ignore problems until drastic measures were required. Had to call numerous times to get an appointment. Felt that Dr Foda did not do required follow up in a timely manner. Did not inform patients of what he did in the OR [such as] remove tumours. Would have died if not for another [doctor].” — Posted on RateMDs.com on May 26, 2007
Administrator of RateMDs, John Swapceinski, says that the site gets letters from lawyers once a month. Not surprisingly, they do not comply with the requests. The site does serve an important public function for consumers of healthcare. But Swapceinski also said that Dr. Foda’s suit is the first time a lawyer has actually followed through and sued the site, and he indicated he would cooperate with a subpoena to release the information if one was provided.
In light of the Cohen v. Google and York University v. Bell Canada Enterprises cases I’ve covered previously, it’s probably no great surprise that the court did reveal the identity of the poster.
What is also unique about this case is that the person identified as the RateMDs poster was involved in different lawsuit on the other side of Dr. Foda in Foda v. Capital Health Region, [2007] A.J. No. 22; 2007 ABQB 19, where he was making a claim for breach of contract, conspiracy, harassment, defamation, and direct interference with economic relations.
The Court of Appeal ([2007] A.J. No. 668;2007 ABCA 207) upheld a motion to add a party to his statement of claim, but the defamation claim agains this party was struck for lack of evidence using the test in Botiuk v. Toronto Free Press Publications Ltd.,
62 …it is sufficient to observe that a publication which tends to lower a person in the estimation of right‑thinking members of society, or to expose a person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1‑15:
[A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it a defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented.
But if the party Dr. Foda was seeking to add in the Alberta case – a Donna Canart, Surgical Clinic Coordinator at Leduc Community Hospital – is the same person identified in the California proceedings, this evidence may now be available. Canart allegedly filed a report against Dr. Foda according to the Capital Health Corporate Workplace Respect Policy, raising issues in the Alberta case of malicious prosecution. However, similar defamation claims in Alberta were made against co-defendant Linda Scott. The California case has only had two hearings to date, and Dr. Foda only spoke in general terms to Sam Solmon, so it is difficult to ascertain which specific party was behind the RateMDs posting.
Even when a claim is substantiated, it is possible for either party to turn malicious. The Foda case highlights that litigants in lawsuits can and will attempt to affect the reputation of the opposing party online, something I’ve predicted repeatedly. All types of litigation will invariably cross over into this specialized area of law.
Some of these rating sites allow the professors to respond to their students, even with video. Or, as they put it,
Your professors have been reading your comments on RateMyProfessors.com. Now it’s their turn…
I don’t see other professions going the same way, given the nature of client solicitation. So where do people turn for help?
Wilson concludes,
Just like there was no such thing as Internet law before the Internet or franchise law before there were franchises, a new and growing niche area is “reputation management law.” It straddles libel, slander and defamation law, freedom of speech, privacy law, copyright and trade-mark law, employment law and the rules governing Youtube, Facebook, Twitter and other social media. And like environmental law 25 years ago, it has nowhere to go but up…
Either way, it’s clear that online reputation management is the next big thing that everyone will have to deal with.
Everyone reading this is now searching their name on LawyerRatingz.com, or other sites like CanLaw. They’re probably wondering what they would do if they were deliberately maligned, and trying to figure out who is the best”reputation management lawyer” they know, if any.
And that’s assuming that you waited until the end of the article to do so.
Using a Norwich Order to Reveal Gmail Accounts
The Ontario Superior Court of Justice released its decision on an application in York University v. Bell Canada Enterprises this Friday. The case is based on an allegedly defamatory e-mail about the President of York University, Mamdouh Shoukri, saying he had “perpetrated an outrageous fraud.”
A group calling itself “York Faculty Concerned About the Future of York University” protested the appointment of Martin Singer of the new Faculty of Liberal Arts and Professional Studies, questioning his credentials and attaching a letter from other academics who did disclose their names.
But the University is more interested in the identity of the unsigned e-mail, presumably by York faculty, sent from a Gmail account, yfcfyu@gmail.com.
G.R. Strathy J. approved a Norwich order against Bell Canada Enterprises and Rogers Communications Inc. to disclose the identity of the account owners. A previous order had been approved against Google back in May, which identified the two ISPs as the holders of the information.
A Norwich order is a pre-action discovery mechanism that is described by Spence J. in Isofoton S.A. v. The Toronto-Dominion Bank,
Requests for Norwich relief are largely unfamiliar to Canadian courts. A Norwich order essentially compels a third party to provide the applicant with information where the applicant believes it has been wronged and needs the third party’s assistance to determine the circumstances of the wrongdoing and allow the applicant to pursue its legal remedies.
The 5 elements identified in this case for granting such an order include:
(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
(ii) Whether the applicant has established a relationship with the third party from whom the information is sought such that it establishes that the third party is somehow involved in the acts complained of;
(iii) Whether the third party is the only practicable source of the information available;
(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and
(v) Whether the interests of justice favour the obtaining of disclosure.
[emphasis added]
The privacy interests of the alleged wrongdoer were overcome by the last element, the interests of justice, because of the applicant’s equitable right to information. Spence J. pointed to Alberta v. Leahy and Bankers Trust Orders (from Bankers Trust Co. v. Shapira) indicating that court orders can override confidential information, even for financial records, and Glaxo-Wellcome PLC v. M.N.R. that the privacy interests of alleged wrongdoers is somewhat diminished.
What is troubling about the latter citation is that the rationale used by the Federal Court of Appeal was that the information could not be considered especially sensitive since it had passed through several hands. Although the York case does demonstrate that multiple parties may be involved in identifying a defendant, many privacy watchdogs would be concerned that IP information loses its privacy value simply because it is shared.
However, Spence J. did point to other reasons why the privacy expectation may be overridden, because the information is limited by terms of the order for specific purposes and the use of this information is not absolute. Additionally, a strong case of fraud removes the possibility of a frivolous or vexatious application of the order.
G.R. Strathy J. also discussed the necessity of granting the order for York by citing GEA Group AG v. Ventra Group Co,
…there is no suggestion in the established jurisprudence that [necessity] is a stand-alone requirement for the granting of a Norwich order…
In my opinion, the precise placement of the necessity requirement in the inventory of factors to be considered on a Norwich application is of little moment. The important point is that a Norwich order is an equitable, discretionary and flexible remedy. It is also an intrusive and extraordinary remedy that must be exercised with caution. It is therefore incumbent on the applicant for a Norwich order to demonstrate that the discovery sought is required to permit a prospective action to proceed, although the firm commitment to commence proceedings is not itself a condition precedent to this form of equitable relief.
…The crucial point is that the necessity for a Norwich order must be established on the facts of the given case to justify the invocation of what is intended to be an exceptional, though flexible, equitable remedy.
G.R. Strathy J. then pointed to a number of other ways that this information could be obtained without the Norwich order, including the pre-action disclosure in the now-infamous Cohen v. Google Inc. Although both ISPs had privacy policies for the customers, these could be overridden by s. 7(3)(c) of PIPEDA to comply with a court of law.
Given the recently ruling, and assuming it’s not overturned in the future, it’s likely were going to see more Norwich orders used for the purposes of identifying Internet activity.
Blawg Review #228
If you’re just starting law school, law blawgs can be your best friend. In addition to this site, here are 99 other blog posts that you should read to help prepare for your adventure. It won’t help you though if you’re a judge about to be tested.
Most law students want to be in the top 10-15% of their class, and there are career opportunities that depend on that. Ken DeLeon of Top-law-schools.com provides some tips for success in law school, including a handy flowchart on how to prepare for your law school exams. But keep in mind that the end of the billable hour might result in some changes to your legal education, and law students have different learning styles than the rest of the population.
Still applying to law school? An undergraduate degree in physics or math might be your best option to get a solid LSAT score. Remember that these days a law career is considered a risky option, and there are lawyers in Jersey actually working for free. Where else is success defined by more work (even for less pay), and not more recreational or family time? Larry Ribstein still thinks law school is the cool choice. But is it really worth it?
On the other hand you could elect to skip your classes, get intoxicated regularly, sleep with all the members of the opposite sex, gain a reputation as being a total douche bag, and then score a book and movie deal.
Introducing Tucker Max – asshole extraordinaire – a graduate of Duke Law that claims assholes finish first.
An inspiring personality, certainly, and an approach that John Infante of Fearfully Optimistic would definitely disagree with. It does make you wonder how many Dukes are faking the Daisy to hazard “celebrity bias.” The Bitter Lawyer has an exclusive interview with Tucker that is, at the very least, amusing.
Then again, “skipping classes, playing basketball, doing cocaine and getting drunk” might help you become President of the United States – but eventually someone might start asking for your law school transcripts. None of this is likely to come up during the President’s special advice to students tomorrow (Sept. 8). An open and transparent government, perhaps, but not that open. Reality check: the last refuge of the persecuted crack smoker may not be in law school.
Hey, “Some people snort cocaine, others snort religion,” and the latter is not necessarily better. The Exit at My Legal Fiction suggests wearing lipstick as a law school study aid, for some very compelling reasons. If you’re a missionary in Kenya, please don’t vow to go to law school out of religious convictions, unless you’re going to a low-ranking religious-affiliated law school. Happy Belated Todd, but I won’t be paying $25,000 for dinner any time soon.
Still, your biggest youthful indiscretion might be going to law school itself (and graduating at the bottom of your class hardly precludes success). If your indiscretions precede law school and include a criminal record, there are some disclosure issues you should consider. Using stolen Social Security Numbers to steal student loans for partying, with Tucker, Todd, or otherwise, probably isn’t a great idea. Assistant Deans at law schools? Not a good idea either.
Robert J. Ambrogi also tells us about Branigan Robertson of Chapman University School of Law, who won $10,000 for this video in the My Inspiration video contest:
These law students are doing better than a lot of lawyers these days. When life gives you lemons (or a recession), you should just make lemonade. Dan Markel is asking, what kind of juice are you making?
On the other hand, if you’re looking to avoid personalities like Tucker Max at all costs, you might be interested in Above the Law’s Douchiest Law School Contest.
No surprise that Harvard and Duke are currently heading the pack as finalists. Also check out Paul Caron’s review of U.S. News Law School Rankings for Judicial Clerkships, which includes data from Brian Leiter’s rankings. If douchiness turns you off of Yale and clerkships are really important to you, the University of North Dakota might be a good alternative. However, great credentials don’t always make more satisfied lawyers, because these guys tend to be plagued by that green-eyed monster.
Charon QC’s musings might be useful in determining if a “douchy law school” is worse than a “McDonalds of law schools,” while Dan Slater of the NYTimes suggests just locking the doors to all law schools because there are too few hiring positions. Still having a hard time picking a law school? The iPhone app Law School 100 is free until midnight tonight (Sept. 7). Study aids are becoming more interactive, with West’s new Interactive Case Series now linking to directly to law review articles cited in the case series.
Keep in mind that law school is different than undergrad, and you should probably clean up those social networks you’re on. After all, you wouldn’t want your mom witnessing you pulling a Tucker Max, and some employers might require you to submit your social media for a background check. Social media is also being increasingly being used in the courtroom, and no, the judge doesn’t really want to be your “friend.” Don’t get rid of that social media entirely though, because “People don’t find lawyers in the phone book… They find them through TV ads or friends or by searching the Internet, including blogs and social networking tools.”
Apparently what clients really want from their lawyer is to “feel the love,” so if someone comes to your office complaining they hurt their “tushy bone,” try not to laugh too hard. Be forewarned though – that volenti non fit injuria doctrine you learn in Torts class also applies to contracting Herpes Simplex I from wrestling, also known as Herpes Gladiatorium.
That’s probably not what Lauren in Law School had in mind when she suggested gladiator games as an alternative to On Campus Interviews (OCIs). You can get a list of the guys in your university with herpes from the new Campus Gossip site just to be on the safe side.
Although the number of followers you have on Twitter is no sign of of expertise or influence, it might land you a job (or lose it) with a firm or get you published, even if Perz Hilton decides to sue you for defamation. No “love” (or wrestling) for him, sorry. Some people do take Twitter seriously, perhaps too seriously.
Eric Goldman’s interview with David Lat highlights the importance of students networking during a crisis. Dennis Jansen also thinks that networking with your peers might be useful, but consists of more than “beaming your peers with business cards or mass-adding people on Facebook and LinkedIn.” As popular as WordPress may be for blogs, it just might not be for your law firm, and you even might be held liable for content on your site to a tune of $32.4 million.
The Law Society or State Bar is probably not going to like it if you steal other people’s Twitter content and pass it off as your own, like Melina Beninghoff did . Stealing content doesn’t take brilliance, and it barely takes effort. What is clever is coming up with this CraigsList listing from Los Angeles. But is stolen content any worse than fake content?
Today is also Labour (sic) Day in Canada and the U.S. That’s the Canadian spelling, because Labour Day did originate in Canada in 1872 with the Trade Unions Act, which legalized unions. The United States followed in 1882 with informal observance in New York City, and by 1894 it was observed by 23 states through legislation. Still, it was the American President Lincoln, not a Canadian, who said in December 1881,
It is assumed that labor is available only in connection with capital; that nobody labors unless somebody else, owning capital, somehow by the use of it induces him to labor…
Labor is prior to and independent of capital. Capital is only the fruit of labor, and could never have existed if labor had not existed.
Although most Canadian law schools start the day after Labour Day, many Americans start a week or two earlier. According to Blawg Review 122 it seems that in Dublin they start as late as October, but it might just be that everyone (students and profs) are recovering from prolonged hang-overs.
Labour relations are highly relevant for this edition of Blawg Review, since law professors at the University of California are considering a walk-out despite having the “best public education in the world.” Perhaps they could use this list of 24 alternative mediation dispute resolution sites to read.
Maybe they should just settle this all over a beer. Then again, those Canadian brewers are at it again with their trade-mark litigation! Next time someone tells you “I Am Canadian,” you might want to do your due diligence.
The big thing up here in Canada right now is Copyright Consultation Reform. Although over-reaching legislation is great for the lawyers, it does little for end-users of copyright material. If you’re one of those folks with a keen attention for cyberspace cases, this new blog following the 10 most important U.S. cases will probably be of interest.
But the big thing about Canada in the U.S. right now seems to be our healthcare system, which we’re rather partial to, despite what they mights say (Ignore those pesky suits). Send us your gladiators with herpes, and your perdurable impetus. All that talk over at Volokh about a “lottery system” can only be described as nonsense.
(At 1:53 Glenn Beck repeats lottery libel, and at 3:21 yells at a caller to get off his phone, “you little pinhead,” for not listening to the “facts.” The remix is even funnier.)
Although she acknowledges that healthcare reform is needed, Althouse has 10 things she hates about it. Change is always hard due to “status quo bias.” Madeleine Begun Kane has a limerick she wrote just for the spats over healthcare in the U.S. (watch your pinkies!):
“Majority rule is just great,”
Said Gregg in the drilling debate.
“You’ve got 51 votes,
Then you win.” Check his quotes.
Yet 51 Dem votes don’t rate.
Seeking medical treatment is probably the first thing you should do after a car accident, irrespective of whether it occurs in Canada or the U.S. Passen Law provides 9 other things you should do, including, of course, getting an experienced personal injury lawyer.
Another thing we have in Canada absent in the U.S. is a prohibition against the death penalty. Perhaps the fact that 45% of wrongful convictions in capital cases are based on jailhouse snitches has something to do with it. Mark Bennett of Defending People points out the interesting observation that a Texan executioner appears to be committing murder by that state’s law,
…would you participate in a death penalty trial, knowing that, for the rest of your life, with the turn of a tide of public opinion you could be prosecuted for making what you believed to be the right decision? You may be betting your life.
Do you think that employment contract with the State would protect you? Don’t count on it, as Jeffery I. Gordon mentions that most contracts are too brittle to withstand scrutiny, even if those FirstDrafter clauses look like they can do the job.
On the other hand, if your employment contract follows an affirmative action plan that is not remedial and narrowly tailored for past discrimination, it may constitute unlawful discrimination. We’re still not sure if a stripper constitutes an employee or an independent contractor in Employment Law class.
More guys in that class would probably express their anticipation for seeing Jessica Alba as the stripper-law student Nancy Callahan in the upcoming Sin City 2 if they weren’t concerned about objectifying women.
Don’t lose any sleep over it, unless you’ve sexually assaulted employees and are settling for $1.72 million. Be careful though – the risk of contracting gladiator herpes (and sins) rises exponentially when wrestling with strippers. You could also get robbed or raped.
Personally, I would be okay with any affirmative action that sought to get everyone but Tucker Max and any potential douches into my law school. Nancy Callahan might get a pass, as long as she doesn’t hook up with Tucker while she’s there.
Special thanks to David Shulman for editing on this piece.
That’s it for this week’s edition! Remember: Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
Facebook Agrees to Comply with Canada’s Privacy Laws
A triumphant Jennifer Stoddart, Canada’s Privacy Commissioner came out this morning and said that Facebook agreed to make changes to its privacy policy within a year. The following changes are being touted:
- Denying third-party application developers access to user information without the user’s express consent in each of the categories the applications wants to access (currently, a user clicks just one button and the application can access all info regardless of whether or not it needs it);
- Giving users the opportunity to provide meaningful consent to retain profile pages after their death (currently there is no such provision that I know of);
- Add information about the privacy of non-users;
- Allow users the option of deleting accounts and all information associated with the account from Facebook’s databases (currently, a user may “deactivate” their account, meaning that the info still stays on Facebook’s servers).
This is indeed a meaningful victory. However, it does raise some interesting questions. Facebook is not the only platform out there that indefinitely maintains the information of its users. Other platforms such as Myspace, twitter, countless small(er) sites such as meetmeinto and the ever expanding vacuum of information called Google.
Are the laws on privacy clear? How do they apply to non-Canadian companies? How can they be meaningfully enforced, especially outside borders? I see Facebook’s agreement to comply with laws as largely a goodwill measure. If the company wanted to dig in its heels and refuse to make any changes, what could the Privacy Commissioner have done? Let’s see if someone can answer this question.
Cross-posted on Lawyerling.ca
Facebook and privacy
Ottawa takes on social media giant for violating Canada’s law
Data centres instead of car plants
Michael Geist proposed a digital strategy for Canada in Toronto Star on Saturday. It’s a big topic that we should definitely write more about here on Law is Cool. But let me just say one thing for now: Canada could be a fantastic global data centre haven. Here are two reasons: cold climate and privacy laws. And there are no border wait times for digital goods!
Beyond democracy
Most people think they know what democracy is or, at least, they know democracy when they see it. But try calling something undemocratic, and debates break out about the definition of democracy. Of course, I am talking about mildly hard cases rather than obvious ones; about, say, allegations against a provincial government, not Kim Jon Il.
Take the jury vetting case that’s rattling editorial pages. Is it undemocratic for the Crown to use police databases for secret jury screening? It depends. On what? On your definition of democracy. Here we go again. Unless we are philosophers, we probably don’t want to debate what democracy is in this case. Perhaps, there is a more useful and easier way to understand the issue.
Two things are wrong with the kind of jury vetting that happened in Windsor and Barrie (and who knows in how many other places in Ontario). First, the Crown concealed material information from the defence. This is unfair to the accused. And if that doesn’t impress you, let me say that it’s horribly unfair. Second, the Crown pried into prospective jurors’ lives with forceps and a magnifying glass.
It is this second transgression that I’d like to focus on. Instead of pondering whether it is undemocratic, let’s use more granular and unambiguous terms. Did the government take something from those prospective jurors that they didn’t intend to part with? If yes, does this unduly acquired possession increase government’s power relative to the jurors? Theft and power balance should be more straightforward to understand than democracy.
One newspaper editorial lists some personal tidbits kept in the depths of government databases: “dislike[d] police,” “family issues,” “criminal associates,” “fraud (dismissed),” “criminal record peace bond entered,” “[teacher] accused of assaulting student,” “suicidal in 2001,” [o]ngoing neighbour dispute — neighbour shot his cat,” and “[w]itness to parent’s domestic dispute. Dad is a drinker and assaulted her mother.”
Of course, the only allowed ground of ineligibility under the Juries Act that would require a police check is a history of indictable offences. But that is not the point. The really important revelation is the extent of personal information collected by state agents during their interaction with citizens. Examples above clearly come from police notes jotted during lawful investigations. But did you know they would put it in a database?
Imagine a police visit in response to your neighbours’ complaint about noise a hundred years from now. The officers are standing outside while you’re propping the front door with your feet and talking to them. Future technology will easily enable the following without your awareness:
1. Your DNA sample will be obtained.
2. Screenshots of computer screens will be taken.
3. If anyone is using electronic devices, data input will be intercepted.
4. Your vitals, including viral/bacterial presence, will be recorded.
5. Everything will be instantly transmitted to a central database.
After all, you opened the door. No one forced you.
SCC: No Privacy Interest in Things We Throw Out
The Supreme Court of Canada today released its decision in R. v. Patrick, 2009 SCC 17, which concerns privacy interests in garbage and other abandoned items. The Court ruled that a police search of garbage abandoned at the curb does not require a warrant and can be done without violating the Charter.
Calgary police suspected that Mr. Patrick was operating an ecstacy lab in his house. Acting on this suspicion, the police attended at the house on six occaisions to retrieve and search through garbage bags, looking for any evidence of criminal activity.
The garbage bags had been placed inside garbage cans, which in turn had been left outside in a small shed for collection. The shed was on Mr. Patrick’s property, and the police had to reach over the property line to grab the bags.
As a result of these searches, police retrieved numerous incriminating pieces of evidence. The bags contained things like packaging for a digital scale, a receipt for muiatic acid, torn up chemical recipes, etc. Some of the items were contaminated with ecstacy.
Partly on the basis of the evidence collected in this way, the police were able to obtain a warrant to search Mr. Patrick’s home. After forcibly entering his home, they discovered precursor chemicals, scales, a pill press, and 2679 ecstacy pills.
Patrick argued that his section 8 Charter right to be free from unreasonable search and seizure had been violated.
The Court unanimously decided that it had not.
The central issue in the case was whether Patrick, by placing his garbage bags outside to be picked up by municipal garbage collection, had abandoned any interest in those bags.
Thus, the case was was essentially resolved as a property law question.
The majority cited R. v. Dyment, [1988] 2 S.C.R. 417 for the proposition that abandonment of an item automatically disposes of one’s privacy interest in that item:
In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it.”
[Patrick, at para. 22.]
Next, they cited R. v. Stillman, [1997] 1 S.C.R. 607 as standing for the same proposition:
In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded.”
[Patrick, at para. 23.]
A finding that an accused person has abandoned an item seems, therefore, to be dispositive of any section 8 claim about that item. That’s a pretty narrow view of privacy.
Ironically, in Stillman, the seizure of a discarded tissue was held to have breached the accused’s section 8 rights. In that case, a young man was in custody at RCMP headquarters for five days. During the course of his detention, Stillman blew his nose into a tissue and tossed it out. The police retrieved the discarded tissue and obtained Stillman’s DNA.
The Supreme Court in Stillman focussed on the fact that the accused was in custody and had no real alternative to giving up his bodily samples:
[W]hen an accused person is in custody, the production of bodily samples is not an unforeseen occurrence. It is simply the inevitable consequence of the normal functioning of the human body. The police are only able to profit from the production of the samples because the accused is continuously under their surveillance. For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody. … In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples? He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”
[Stillman, at paras. 58-59.]
Why is the custody versus out of custody distinction so significant?
The reality of modern urban life is that the only realistic way to dispose of household garbage is through the municipal waste system. The production of household garbage is not an unforseen occurrence. It is simply the “inevitable consequence” of civilization. The garbage has to go somewhere. It is completely impractical (and probably illegal) to have to burn every piece of garbage that you want to keep private. Indeed, in Calgary, where Mr. Patrick lived, by-laws make it illegal to dispose of household garbage in any way other than by placing it in a waste container for collection.
Thus, whether you are in custody or at home, the waste you produce will eventually end up in the hands of the state.
(Incidentally, Calgary also has a by-law making it illegal to scavenge through someone’s garbage. The police violated the by-law, but I doubt whether anybody wrote them a ticket. Isn’t the existence of this by-law indicative of the important privacy concerns that we have in our waste? The majority dismissed the relevance of the by-law [Patrick, at para. 68].)
Despite recognizing the important privacy concerns with respect to the contents of a household garbage bag the Supreme Court simply could not get past the abandoment issue:
Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.). As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle. Many of us may not wish to disclose these things to the public generally or to the police in particular.
…
[A]part from the key issue of abandonment, the circumstances in this case favour the appellant. The police were trying to find out what was “happening inside a private dwelling, the most private of places” (Plant, at p. 302). … The gathering up of the contents of the bags by the police provided them with a window into the appellant’s private life.
[Patrick, at paras. 30, 40; emphasis mine.]
So when exactly does household waste become abandoned such that the police can freely look into that window? The defence argued that the privacy interest in garbage should continue until the garbage becomes anonymous. The Court rejected this view outright:
The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house.
[Patrick, at para. 54.]
Is that actually “too extravagant to contemplate?” Is the defence’s proposal such a bad idea? I certainly think that the personal items I throw in the trash ought to remain private until they cease to exist. I bet a lot of Canadians would agree with me. The municipal garbage system, to me, is like an Orwellian memory hole.
The Court concluded that the moment we toss our garbage bags to the curb, our privacy interest in the contents of the bags is at an end. It doesn’t matter if the garbage bags are on your side of the property line. It doesn’t matter if you take pains to drive your garbage bags all the way to the dump site. The majority held that:
Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal. To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.
…
[T]he appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection. The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.
[Patrick, at paras. 64, 73.]
There was a brief concurring opinion by Justice Abella. Though she did not believe that a Charter breach had occurred in this case, her focus was not on the abandonment issue.
Abella J. found that abandonment alone should not automatically leave household waste open to police scrutiny. She was concerned that under the majority’s approach, the police would have unrestricted access “to information most people would never expect to be publicly accessible.” In her view, a person has a diminished, but not extinguished, expectation of privacy in respect of garbage which has been abandoned [Patrick, para. 90].
Given that there was some expectation of privacy, this expectation would have to be balanced against the legitimate interests of the state in investigating crime. Abella J. did not believe that prior judicial authorization in the form of a warrant would strike the appropriate balance. Instead, she felt that police must have a reasonable suspicion. “Reasonable suspicion” was not defined in the judgment, but it usually refers to some articulable grounds for believing that a crime has taken place. It is more than a mere hunch, but something less than reasonable and probable grounds; a fairly low threshold.
“[I]n my view, with respect, the privacy of personal information emanating from the home, which has been transformed into household waste and put out for disposal, is entitled to protection from indiscriminate state intrusion. Such information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal. Before the state can rummage through the personal information from this ultimate zone of privacy, there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.”
[Abella J., concurring, in Patrick, at para. 77.]
Certainly when we throw our garbage out we are giving up a proprietary claim to it. But I think that our proprietary claim has to be treated as distinct from our privacy interest. I think it’s an inherent expectation of Canadians that what we throw out will be free from scrutiny by other members of the public, and certainly by the state.
Abella J.’s decision is much more compelling in that it recognizes a legitimate (though diminished) expectation of privacy in things we throw out.
Unfortunately, today’s majority decision significantly abrogates our privacy rights in this country.
Be Careful What You Post For
Following a trend of the erosion of privacy rights online, an Ontario couple who own a far-right website were ordered to disclose the names of eight anonymous posters related to a defamation lawsuit.
The owners of FreeDominion.ca, Mark Fournier and Connie Wilkins-Fournier, were told that they would have to reveal the names of anonymous posters who attacked Ottawa anti-hate-speech activist Richard Warman. He is suing the couple, alleging that they “falsely and maliciously published and circulated” defamatory comments about him. The Fourniers argued against the disclosure saying that posters on their site behave differently under the shroud of anonymity than as if they were publicly identified.
Ontario Superior Court Judge Stanley Kershman decided that “the defendants are under an obligation to disclose all documents in their power and control.” He cited a case from 2004 in which it was stated that privacy rights must be balanced with the public interest and the rights of others. He also cited a more recent child pornography case in which the judge found that there was “no reasonable expectation of privacy” with respect to ISP disclosure of customer information (this case is discussed in detail at LawIsCool here).
UofO professor Michael Geist disagreed on his blog with the argument that the disclosure of the posters’ information was essential to protection of the public interest:
Protection for anonymous postings is certainly not an absolute, but a high threshold that requires prima facie evidence supporting the plaintiff’s claim is critical to ensuring that a proper balance is struck between the rights of a plaintiff… and the privacy and free speech rights of the poster. … I fear that the high threshold seems to have been abandoned here.
So as the blogger wars heat up below, keep in mind while posting that you can’t always hide behind the anonymity of the Internet.
