For the London Free Press – June 7, 2010

Read this on Canoe

Ontario court says website operators can’t always be ordered to disclose the identity of posters accused of defamation.

On May 3, 2010, an Ontario Divisional Court appeal decision addressed the issue of whether a web site operator should be required to produce information that could identify individuals who posted allegedly defamatory comments on that website.

The decision made clear that Canadian courts will order the release of information to identify anonymous posters – but only if certain tests are met first.

In Warman v. Wilkins-Fournier, the plaintiff sued Frank Fournier and Constance Wilkins-Fournier, the owners and operators of the freedominion.ca website plus eight John Does. At issue were allegedly defamatory comments posted on that site, and whether the defendants had to disclose information about the anonymous posters so the plaintiff could sue them.

To determine the identity of these individuals, Warman brought a motion before the Ontario Superior Court asking the court to require the Fourniers to provide information about the individuals’ e-mail addresses, personal information used during registration, IP addresses and documents relating to the establishment and ongoing operation of the website.

Justice Kershman was of the opinion that the plaintiff need not show anything to compel the defendants to disclose.

“In fact, the obligation is on the Defendants to disclose”, stated Kershman.

The Fourniers appealed that decision and argued those who use forums do so with the expectation that their comments will be kept anonymous.

The Canadian Civil Liberties Association and the University of Ottawa’s Canadian Internet Policy and Public Interest Clinic intervened. Both argued the court should not order disclosure unless public interest favouring disclosure outweighs freedom of expression and privacy concerns.

The Ontario Divisional Court parted with Kershman and decided the release of identifying information is not automatic.

The court relied on the Sony BMG v. Doe case, where the Canadian Recording Industry Association tried to get the names of online music file sharers. After taking into account five factors cited in that case, the Ontario Divisional Court unanimously held that although the motions judge was alert to the need to take the privacy interests of the unknown alleged wrongdoers into account, the need to consider the interest in freedom of expression was not raised by the parties or considered by the motions judge.

The court ruled judges must consider the following factors whether information on anonymous posters should be revealed in defamation cases:

• Whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
• Whether the plaintiff has established a case against the unknown alleged wrongdoer and is acting in good faith;
• Whether the plaintiff has taken reasonable steps to identify the anonymous party and has been unable to do so; and
• Whether the public interest 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.

The Court allowed the appeal and sent it back for re-consideration.

Here are links to the bill itself, and to a government site called “Balanced copyright” that has information about the bill.

I have not yet taken the time to read it in detail or think it through.  Here is Michael Geist’s initial reaction.

There is something I don’t understand though – as the logic escapes me.

The bill will expand fair dealing – in other words - things we can legitimately copy. (e.g. private study, news reporting, parody, time shifting, format shifting.) 

At the same time, it embraces the concept of a digital lock, and makes it unlawful to break a digital lock for any reason.  In other words, a content owner can lock down their content so we can’t use it for those fair dealing purposes.

So the government says users should have certain rights – then turns around and lets content owners take those rights away?  Seems like they are abdicating their legislative power to content creators. 

Highly illogical.

That’s the title of my Slaw post for today.   It reads as follows.

The new copyright bill is expected today.  There has been much anticipation about what it might contain.  That is understandable given that several failed and controversial attempts have been made to pass a reform bill over the last few years.  And that there were extensive hearings around the prior bill last summer that attracted a significant amount of commentary.  And that digital media is considered by many (e.g. the Canada 3.0 initiative) to be a crucial part of the economic future of Canada.

The anti-spam and privacy bills introduced last week are important bills that have effect on business and individuals alike. But the copyright bill fundamentally affects how every Canadian consumes media. 

Roughly speaking, copyright interests line up in two camps.

First, the entertainment industry, which wants tight controls on copying, including things like digital locks and notice and takedown provisions.

Second, consumers who want less control by media providers, and broader fair dealing rights.

It will be interesting to see what the bill looks like, what the reactions will be, and what changes may result from that reaction.  Fundamentally it is about balancing the various interests to give the right amount of protection to creators, while at the same time giving users reasonable rights to do the things we are accustomed to in this century, such as time shifting, format shifting, and perhaps downloading.  Clarity is important, as is language that doesn’t antiquate itself by tying it to specific technologies.

My message today is that this bill is important, and worthy of close, thoughtful scrutiny and discussion.