Ontario Court Orders Website To Disclose Identity of Anonymous Posters

Shhhh...it's a secret

With stories from Michael Geist and Tech Dirt

Anonymity of posters on websites is one of those sacred rights on the Internet right? Wrong, courts have ruled all over the map on this issue for a variety of reasons. In the case of criminal investigations, there is no anonymity on the web. Your webmaster can see everything you are doing. One local ISP bragged “For fun, I sit and watch people downloading porn.” Bully for his sick sense of humour but that’s the reality. You have an IP address and everything going in and out of your computer is known.

There is a sicko on PEI who uses two anonymous sites in Europe to hide his identity but he is still known. It only took a short time to track him down. The 57 people arrested on child porn charges thought they were anonymous. So be good for goodness sake!

However, we usually feel content that the host site won’t disclose our names unless the cops arrive. Wrong, Canadian courts ruled recently that a site had to turn over names and ip addresses in a civil suit. Tech Dirt asserts that US privacy laws are better at protecting you. I believe he’s right. In Canada when the court deems something evidence, the site owner or ISP must turn it over.

Our policy at NJN Network is we don’t save anything because the office is too small. We immediately delete all emails that contain user comments. We remove email addresses/IP so our site isn’t hacked by Russian trojan / worm sites. That’s our policy.

Also because PEI Culture Vulture Minister Carolyn Bertram has her munchkins out looking for Rustico Mom! We do not destroy evidence on purpose.

Micheal Geist, Wednesday March 25, 2009

An Ontario court has ordered the owners of the FreeDominion.ca to disclose all personal information on eight anonymous posters to the chat site. The required information includes email and IP addresses. The case arises from a lawsuit launched by Richard Warman, the anti-hate fighter, against the site and the posters. The court focused heavily on the Ontario Rules of Civil Procedure, which contain a strong duty of disclosure on litigants.

The discussion includes a review of many key Internet privacy cases, including the CRIA file sharing litigation (which the court distinguishes on the basis of different court rules) and the Irwin Toy case (which emphasized the importance of protecting anonymity, but which the court tries to distinguish on the basis of the newness of the issue at the time). The court also looks at the string of recent cases involving child pornography cases and ISP disclosure of customer information, concluding that “the court’s most recent pronouncement on this is that there is no reasonable expectation of privacy.”

According to the defendants in the case, they are unsure if they have the resources to appeal. This particular decision feels like a judge anxious to order to disclosure, despite the weight of authority that provides some measure of privacy protection for anonymous posters. Indeed, the public policy issue is characterized as “we are dealing with an anti-hate speech advocate and Defendants whose website is so controversial that it is blocked to employees of the Ontario Public Service.” Leaving aside the fact that sites blocked to employees of the Ontario Public Service is not much of a threshold (Facebook is blocked to the OPS), the public policy issue is not the merits of the particular website. Rather, it is the privacy and free speech rights of the posters to that site.

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 (whether in a defamation or copyright case) and the privacy and free speech rights of the poster. I cannot comment on the postings themselves (and I recognize that Warman has been a frequent target online) but I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met.