Judge has ruled not to force the identification of anonymous bloggers

[chrisf]

http://www.canada.com/mobile/iphone/story.html?id=0954f84a-7a7e-4a15-a104-4ef1c18a6d40

Aurora critics can remain anonymous, judge rules
Tuesday, July 26, 2011
By National Post


In a decision with broader implications for online privacy, a judge has ruled not to force the identification of anonymous bloggers who wrote critical web posts about former Aurora mayor Phyllis Morris.

The Ontario Superior Court ruling, which Ms. Morris intends to appeal, is a major blow to her $6-million defamation action, which targets three individuals who authored anonymous posts on the Aurora Citizen website, along with the site's moderators.

[more at link]

http://www.canada.com/mobile/iphone/story.html?id=0954f84a-7a7e-4a15-a104-4ef1c18a6d40

 

[HavokFour]

+1 for freedom of speech.

 

[ModlrMike]

...the judge noted, Ms. Morris failed to set forth the specific words alleged to be defamatory...

This is likely the core of the decision. Had she been able to show the judge how she had been defamed, the outcome would probably have been different.

Freedom of speech carries with it the responsibiltiy to speak the truth. You should not be able to hide behind some anonymous internet handle in order to avoid the consequences should you actually defame someone.

This decision is less about free speech than it is about the plaintiff not proving her case.

 

[AERO2012]

In a decision with broader implications for online privacy, a judge has ruled not to force the identification of anonymous bloggers who wrote critical web posts about former Aurora mayor Phyllis Morris.

Not so fast! According to the following decision of the Supreme Court of Canada, I don't think the ruling in question has a broader implications for online privacy. Judgments are determined on case-by-case basis (freedom of expression vs. protection of reputation). Furthermore, there is a pending case in Quebec Court of Appeal in which the trial judge of the Superior Court forced the  identification of an anonymous blogger. I think the whole issue will end up in the Supreme Court of Canada for a definitive jurisprudence regarding  online privacy.
---------------------------
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ.: 

The law of defamation should be modified to provide greater protection for communications on matters of public interest.  The current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression.  The first two rationales for the freedom of expression guarantee in s. 2(b) of the Canadian Charter of Rights and Freedoms — the proper functioning of democratic governance and getting at the truth — squarely apply to communications on matters of public interest, even those which contain false imputations.  Freewheeling debate on matters of public interest is to be encouraged and the vital role of the communications media in providing a vehicle for such debate is explicitly recognized in the text of s. 2(b) itself.  While the law must protect reputation, the current level of protection — in effect a regime of strict liability — is not justifiable.  The law of defamation accords no protection for statements on matters of public interest published to the world at large if they cannot be proven to be true.  To insist on court‑established certainty in reporting on matters of public interest may have the effect not only of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate, but also of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth.  Although the right to free expression does not confer a licence to ruin reputation,  when proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.  A consideration of the jurisprudence of other common law democracies also favours replacing the current Canadian law with a rule that gives greater scope to freedom of expression while offering adequate protection of reputation.  A defence that would allow publishers to escape liability if they can establish that they acted responsibly in attempting to verify the information on a matter of public interest represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society.  The law of defamation should therefore be modified to recognize a defence of responsible communication on matters of public interest.

------------------------

http://scc.lexum.org/scc-eliisa/highlight?language=EN&documentScope=judgment&all=internet+privacy&title=&citation=&path=http://scc.lexum.org/en/2009/2009scc61/2009scc61.html&query=%2Binternet+%2Bprivacy

 

[Strike]

Careful when using Quebec courts as an example.  Their system of law, including their libel/slander laws, are a tad different than the rest of Canada.

 

[DBA]

Libel law vs Charter of Rights has come up in SCC cases, one was Hill v. Church of Scientology of Toronto (Wikipedia article).  While breaking anonymity adds another twist the underlying law sure seems to be that speaking/writing untruths about public officials can result in being the target of a successful common law libel suit.

 

[AERO2012]

Careful when using Quebec courts as an example.  Their system of law, including their libel/slander laws, are a tad different than the rest of Canada.

I would agree with you but the Quebec Charter of rights and freedoms is quite similar to the Canadian Charter with respect to the freedom of speech.

 

[mariomike]

Freedom of speech carries with it the responsibiltiy to speak the truth. You should not be able to hide behind some anonymous internet handle in order to avoid the consequences should you actually defame someone.

That seems to have been the case here...
Topic: "Judge says paper must reveal details about online commenters":
http://forums.milnet.ca/forums/threads/93140/post-923851.html#msg923851

 

[AERO2012]

Libel law vs Charter of Rights has come up in SCC cases, one was Hill v. Church of Scientology of Toronto (Wikipedia article).  While breaking anonymity adds another twist the underlying law sure seems to be that speaking/writing untruths about public officials can result in being the target of a successful common law libel suit.

I could not agree with you more.

 

[chrisf]

Would also be curious how this case deals with (or if it even does) the website on which the supposed libel was posted, and it's owners/operators.

 

[PPCLI Guy]

+1 for freedom of speech.

-10 for knee-jerk sentiments and parrotting of barely understood slogans that do not, in any way, pertain to the case.

 

[AERO2012]

Would also be curious how this case deals with (or if it even does) the website on which the supposed libel was posted, and it's owners/operators.

The following link contains the ruling in question. I extracted the pertinent pasages for your info.

http://www.canlii.org/en/on/onsc/doc/2011/2011onsc3996/2011onsc3996.pdf

The website, auroracitizen.ca is used as a forum for political speech by way of web postings. Those who post on auroracitizen.ca are free to determine their level of privacy.  They can chose to identify themselves as author of their blog posting, sign under a pseudonym or remain anonymous.

Morris, “in her capacity as Mayor of the Corporation of the Town of Aurora” issued a Notice of Action against the named and anonymous Defendants on October 8, 2010.  The title of proceeding was subsequently amended to remove Morris’s title as Mayor.

The named Defendant, William Hogg, is alleged to have been moderator of the auroracitizen.ca blog with “power to publish, republish, encourage or delete the postings”.  Ms. Bishenden is alleged to have been a former moderator and Richard Johnson, a frequent writer on the Website, and a moderator or a person who authorized, participated in or encouraged the publication and republication of the defamatory postings.  None of the individual named Defendants is alleged to be the author of any defamatory postings.  The three anonymous Defendants, John Doe, James Doe and Jane Doe, wrote allegedly defamatory comments under pseudonyms.  The non-party, Goldblatt, is the lawyer of the named individual Defendants.  He does not represent the three anonymous Defendants.

 

[brihard]

The verdict seems to have more to do with procedure than with principle. The judge seems unsatisfied that the plaintiff actually went to all appropriate efforts to effect discovery, and to point out what the actual specific defamatory material was.

Under the Libel and Slander Act, defamation has to mean that a person's reputation would be lessened in the mind of a reasonable individual. A question that I didn't - on a skim - see come up is whether we're going to establish a precedent whereby we assume that a 'reasonable person' takes words posted anonymously on the internet so seriously as to actually lessen one's opinion of someone. Speaking personally, I'd need to see an anonymous poster establish some serious credibility before I took anything they said to heart. Unless an anonymous poster could be shown to have worked to generate that credibility - honest or not - it's hard for me to conceive of giving such legal weight to anonymous statements as to return a verdict of defamation...