Wednesday, March 25, 2009

Less and Less Privacy?

Michael Geist has blogged about a controversial decision involving controversial parties that seems to suggest that, in Ontario, a plaintiff can get disclosure of the email address, IP addresses, etc. of anonymous posters to blogs or websites, basically by filing a statement of claim and naming the posters as named John Does. Judge Stanley Kershman rejects the need to establish a prima facie case. He also rejects the application of the even lower "bona fide" claim test in BMG, which, of course, as an important appellate decision on rights of John Does to privacy. (Yes, I was involved).

There is no discussion of the substance of the current case other than a brief statement by the Court that "in the case before the court, 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."

The plaintiff is the controverisal Richard Warman, who has been a complainant in many human rights cases and plaintiff in several defamation actions. The case concerns the controversial website

Nobody would suggest that online privacy is absolute. Clearly, in some cases inolving serious criminal behaviour and perhaps even some civil litigation situations, privacy might need to yield to disclosure under carefully measured conditions, such as were articulated in BMG.

However, it is disconcerting to think that, by merely by filing a statement of claim against a bunch of John Does, their privacy can be breached without any examination of the underlying case, or the reliability of the identification process. Judge Kersham is basically saying that there is "no reasonable expectation of privacy" in one's IP address.

If that's the case, there are profound implications for freedom of expression in Canada.

Hard cases can make bad law. Regardless of where one's sympathies may lie with the parties in this instance, it rather looks like an appeal of this decision might be a good thing.



  1. How is freedom of expression linked to privacy? I'm really not clear on how limiting the scope of privacy on the Internet will have any detrimental effect on the values associated with freedom of expression. People should take responsibility for what they say and do on the Internet. As the USSC said, yelling "fire" in a crowded theatre is not protected by freedom of expression.

  2. In answer to the comment above, the US Supreme Court said in 1995 that:

    "Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society."