RSS FeedWarman v. Fournier et al: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases
While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these entities generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of plaintiffs who seek these kinds of orders, courts have sought to craft approaches to evaluating applications for disclosure that strike an appropriate balance between the privacy interests of anonymous internet posters and the reputational interests of plaintiffs.
Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.
1. Background
The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.
The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.
This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.
2. Holding on Appeal
The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.
In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:
If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious 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. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.
[Warman, at para. 33]
After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:
- whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
- whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
- whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
- 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.
[Warman, at para. 34]
In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:
In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima faciecase standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers.
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. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, 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 requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.
[Warman, at paras. 41 - 42]
3. Implications
Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.
Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”):
- whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
- 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 involved in the acts;
- whether the third party is the only practicable source of the information;
- whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and
- whether the interests of justice favour obtaining the disclosure.
[York University, at para. 13]
Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.
Originally posted on Defamation Law Blog
Grant v. Torstar and the defence of responsible communication: implications for bloggers and users of other online media
In the recent decision of Grant v. Torstar Corp., 2009 SCC 61 (“Grant”) and its companion case, Quan v. Cusson, 2009 SCC 62 (“Quan”), the Supreme Court of Canada sought to strike a more appropriate balance between freedom of expression and the protection of reputation by creating the new defence of “responsible communication on matters of public interest” (the “Defence”). The Defence allows defendants in libel cases where statements of fact are at issue to evade liability if they can show that they acted responsibly in reporting on a matter of public interest, even if the statements of fact are untrue. Prior to the decision, defendants could not avoid liability in these cases unless they showed that the statement was substantially true (the defence of justification), or that the statement was made in a protected context (the defence of privilege).
Importantly, the Defence applies not only to journalists and print-based publishers – the types of defendants in Grant and Quan – but also to non-journalist bloggers and users of other online media:
[T]he traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree … that the new defence is “available to anyone who publishes material of public interest in any medium”. [Grant, at para. 96]
[Emphasis added]
Although the extension of the Defence to non-journalist bloggers and users of other online media is an important recognition of the growing relevance and legitimacy of these groups, the Defence is – at least currently – unlikely to protect most members of these groups. To gain the protection of the Defence, the defendant must establish two elements: (1) that the publication is on a matter of public interest; and (2) that the publication was responsible, in that the defendant was diligent in trying to verify the allegation. The trial judge will determine the first element. If the judge concludes that the first element is met, the jury will determine the second element, having regard to several factors:
- the seriousness of the allegation;
- the public importance of the matter;
- the urgency of the matter;
- the status and reliability of the source;
- whether the plaintiff’s side of the story was sought and accurately reported;
- whether the inclusion of the defamatory statement was justifiable;
- whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth; and
- any other relevant circumstances
In assessing whether the defendant was diligent, the jury will be guided by “established journalistic standards”:
[M]any actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]
[Emphasis added]
This indicates that the same journalistic standard must be applied to every defendant irrespective of whether or not they are journalists. As a result, the Defence will likely not apply to non-journalist bloggers and users of other online media unless they perform the due diligence expected of a journalist in the circumstances.
The problem for many members of these groups is that they are generally not guided by established journalistic norms. Although they may approach online publishing in good faith and with a level of diligence reasonably expected of non-journalists, this level of diligence is unlikely to meet the required journalistic standard. For example, although journalists will generally make a point of seeking the plaintiff’s side of the story and speaking directly to witnesses and experts, non-journalist bloggers – who are generally unpaid for their efforts – will rarely have the time, resources, training, or willingness to do so. As one American commentator argues,
blogging and journalism clearly differ. The former ‘implies that a disinterested third party is reporting facts fairly’ (Andrews, 2003: 64). Blogs are ‘unedited, unabashedly opinionated, sporadic and personal’ (Palser, 2002) – in many ways, the antithesis of traditional US journalism. Some say that is the best thing about them. ‘Journalism is done a certain way, by a certain kind of people,’ but bloggers “are oblivious to such traditions” (Welsh, 2003). [Jane B. Singer, “The political j-blogger: ‘normalizing’ a new media form to fit old norms” (2005) 6(2) Journalism 173 at 176]
[Emphasis added]
Even if a non-journalist blogger or user of other online media does engage in the level of diligence required to meet the journalistic standard, they may unknowingly fail to do so in a way that produces a strong record of evidence from which a court can conclude that they did act diligently. As a result, many of these defendants may simply not have access to the protection of the Defence.
Nonetheless, Grant does not foreclose the possibility that courts will apply a different diligence standard to non-journalist bloggers and users of other online media as the “norms of new communications media” evolve. Although the court isn’t clear on this point, these groups might be able to gain the protection of the Defence in future cases even if they haven’t performed their diligence in the same way that a traditional journalist would have:
While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. [Grant, at para. 97]
[Emphasis added]
Even if the standard applicable to these groups does not shift to allow them to gain the protection of the Defence, juries – who have been tasked with the responsibility for assessing whether the defendant was diligent – may be sympathetic to these groups and apply the journalistic standard less rigidly.
In summary, although the Defence extends to non-journalist bloggers and users of other online media, many members of these groups are unlikely to be protected by the Defence because it requires that they performed the due diligence expected of a journalist. Nonetheless, the law does not necessarily foreclose the possibility that courts will apply a different diligence standard to these groups in future cases, or that juries will less rigidly apply the existing journalistic standard.
Originally posted on Defamation Law Blog
Protecting 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
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
