Law Times

PAGE 8 An online resource 1.800.263.3269 Focus On INTERNET/E-COMMERCE LAW Courts address limits on Internet anonymity Several recent cases provide valuable clarity for lawyers on disclosure BY DARYL-LYNN CARLSON For Law Times T he Internet is an ideal forum for peo- ple to express their opinions and perspectives under the guise of anonym- ity. Despite several cases that have sought to have the name of an Internet user disclosed due to derogatory or defamatory remarks, On- tario's courts ruled recently that can happen only if the matter meets four criteria. Th e Ontario Divisional Court set the criteria last summer in the matter of Warman v. Fournier. In it, the judges addressed the issue of "whether such dis- closure is automatic if the re- spondent is able to demonstrate relevance and an absence of protection under one of the tra- ditional categories of privilege or whether the court must also The Warman matter set out 'consistent and principled approaches' to disclosure, says Wendy Matheson. consider the interests of privacy and freedom of expression of the John Doe defendants and, if so, in what manner." Th e case stemmed from com- ments by about eight partici- pants posted on a message board site called Free Dominion. Wendy Matheson and Natalie Biderman, both of Torys LLP in Toronto, were involved with the case as counsel for intervener the Canadian Civil Liberties Asso- ciation. According to Matheson, ANNOUNCEMENT McKELLAR STRUCTURED SETTLEMENTS INC. the case has provided much clarity for people who believe they have a right to sue based on a possible defamatory re- mark on a web site. "As a result of the War- man case, there are con- sistent and principled ap- proaches the courts will take to address the question as to whether a plaintiff should get the disclosure of identifi ers of an anonymous Internet user," she says. Matheson also notes the court referenced Canada's Charter of Rights and Free- doms in coming to the de- cision that the disclosure of Internet users' identities shouldn't be automatic. In the decision, Justice Herman Wilton-Siegel wrote on behalf of the panel: "In cir- cumstances where Charter rights are engaged and therefore courts are required to take such inter- ests into consideration in deter- mining whether to order disclo- sure, the case law indicates that the Charter-protected interests are balanced against the pub- lic interest in disclosure in the context of the administration of justice by a combination of (1) a requirement of an evidentiary threshold, (2) fulfi llment of con- ditions establishing the necessity of the disclosure sought, and (3) an express weighing of the com- peting interests in the particular circumstances of the litigation." Wilton-Siegel continued: 649 Scottsdale Drive, Suite 100, Guelph, ON Canada N1G 4T7 1.800.265.8381 519.836.7631 Untitled-3 1 www.lawtimesnews.com 5/31/11 4:26:11 PM "In order to prevent the abusive use of the litigation process, disclosure cannot be automatic where Charter interests are en- gaged. On the other hand, to prevent the abusive use of the Internet, disclosure also can- not be unreasonably withheld even if Charter interests are engaged." Th e court also affi rmed that the following criteria should ap- ply in determining whether an Internet user's identity should indeed be released and thereby enable a plaintiff to sue in actions such as defamation. Th e Federal Court of Canada developed the criteria in two other cases: a class action lawsuit initiated by a group of plaintiff s against Sony BMG Music Entertainment and an action by Irwin Toy Ltd. against Quebec's attorney gen- eral. Th e criteria include the fol- lowing provisions: • Whether the unknown al- leged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances. • Whether the applicant has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith. • Whether the applicant has taken reasonable steps to identify the anonymous party and has been unable to do so. • Whether the public interests favouring disclosure out- weigh the legitimate interests of freedom of expression and right to privacy of the per- sons sought to be identifi ed if the disclosure is ordered. In Matheson's view, the criteria are very helpful for lawyers. "What this means is [what] lawyers can and often do is bring motions seeking dis- closure of the identity of anon- ymous Internet users but when they bring those motions, there are some fairly well-established tests they have to meet to get that information and these as- sist lawyers in preparing their motions and what they need to establish," she says. Matheson notes the law in this area has been evolving for many years but says that until about a year ago, it had been unclear for lawyers asked by clients to launch a lawsuit related to an Internet user who can't be identifi ed. Elliott Simcoe, a partner at Smart & Biggar/Fetherston- haugh in Ottawa, says the courts in recent years have es- tablished a lot of helpful juris- prudence for lawyers who prac- tise Internet law. He notes that going back to the mid-1990s, there were many copyright infringement issues but there wasn't much guidance for lawyers. "If you wanted to seek a release for any infringements, you would look to the court rules and you would see there were two ways to do it: either by a pre-action discovery where you would bring an action against the ISP or by looking at jurisprudence that wasn't related to the Inter- net," he says. Now, however, there are sev- eral cases lawyers can look to in order to determine how to ap- proach a matter they're involved in. "Th e courts have recently said that no, the release of this information even in a pre-action discovery or in litigation is not automatic and you need to take into consideration competing interests of freedom of expres- sion and privacy when they de- cide whether to grant a request," Simcoe points out. June 6, 2011 • Law Times

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