Michael Geist on Privacy
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. michael geist
The comments are equally interesting.
There are such things as privacy rights and it appears that in his haste to provide disclosure, the judge in the Warman v. FD matter may not have considered those rights properly. That combined with the judge’s misapprehensions as to the import of a site being blocked to the Ontario Civil service plus the punative costs and the short deadline to pay all suggest that Connie and Mark have a basis for appeal.
That said, there may be a broader public interest at play here. While privacy is not an absolute right, in the absence of a finding of criminal or civil liability there is no reason it should be ignored simply because an action – of untested merit – has been brought. It would be interesting to see the affidavits Lucy filed in support of his application.
March 26th, 2009 at 10:11 am
Its my job to ensure that private health records are used correctly. I also have to give my opinion on whether a project should go ahead based on my understanding of the Personal Health Information Protection Act.
As such, I have to read opinions put forward by the Information and Privacy Commissioner of Ontario: http://www.ipc.on.ca/english/Home-Page/
I usually have to say, “well, we can say no, but here’s what the Commission ruled” and give a precedent whereby someone who doesn’t have a clue about the power of relational databases ruled “I don’t see any reason not to give them the data”. (Basically, we sever records that have 5 or fewer references).
In other words, the judiciary doesn’t seem to be “hep” to this computer thingy…
March 26th, 2009 at 12:28 pm
I think this should be the next task = “denormalization” of the judges and lawyers who simply have not comprehended the broader implications of “friendly findings” in cases related to “...this computer thingy”.
I hope there is a donor appeal for Connie and Mark (as there was for the Canuck 5) as I suspect their case and eventual outcome will set Canadian libel, defamation and slander law for decades.
Steyn’s comment is especially illuminating in relation to Ezra’s book and the contribution Lemire played in the process.
I hope Truepest approves this message?
March 26th, 2009 at 12:38 pm
Even BCL has reservations – hummm that Kenny post?
“Warman Vs. Fournier: The Lawyers Respond
Two of them, at least, and they don’t like it. Here’s Gary Wise, and here’s Michael Geist. Since they both make similar points, I will let Mr. Wise speak for both:
While I understand the freedominion authors to be an extremely tempting target to many in the blogosphere, little solace should be taken from this ruling.
An order for disclosure may have been justifiable if the statements made by the anonymous posters were, on their face, apparently actionable.
The Court’s disinclination, however, to engage in any factual analysis of the alleged defamation or the necessary balancing of competing interests has created a dangerous precedent that should not be allowed to stand.
Based on Warman ruling, the mere commencement of a court proceeding may now give rise to an automatic entitlement to this form of disclosure”.
March 26th, 2009 at 2:43 pm
No, not reservations. This is the latest news on this issue, so I wrote something up about it.
I don’t know the defamation side of this that well, but I am pretty familiar with PIPEDA. The bottom line is, if your IP is judged to be like your phone number, than it is not private information about you. Phone books have existed forever and sales people (for example) have traditionally matched numbers to addresses to harass people in all sorts of ways, so PIPEDA says they’re okay. Thats why reverse phone directories are still legal.
And IPs do seem to be a bit like a phone number.
March 26th, 2009 at 2:59 pm
Interesting point BCL.
They are a bit like a telephone number. They are also a bit like GPS co-ordinates and a bit like street addresses.
Now if I give you my IP or phone number or Street addy on your promise not to make that public there are certain circumstances under which you may be compelled to release that information notwithstanding your promise. Normally a warrant or a Court Order will compel production. Which is what happened here.
Geist’s point, echoed by Gary Wise, is that for such a Court order to properly be issued the Court must be satisfied that there is a prima facie case to be answered. In the subject judgment there is no indication such a case has been made out by Lucy nor any that the judge considered the factual basis of such a prima facie case. The implication being that the judge may very well have erred in granting Lucy his order.
March 26th, 2009 at 4:10 pm
“They are also a bit like GPS co-ordinates and a bit like street addresses.”
Street address appears in a phone-book, and phone numbers also serve as a rough version of a GPS. Don’t think that makes your point.
March 26th, 2009 at 6:02 pm
The judge may have applied the wrong test, but I suspect the right test would produce the same result. After all, the elements of a prima facie case should be apparent on the face of a defamation pleading, since the defamatory words must be set out. And, as Mark Francis (who, unlike whiners like Levant and Shaidle, actually is a defendant in a SLAPP suit) points out over at BCL’s place, there aren’t many judges who are going to deny a plaintiff with the making of a plausible case the identity of a defendant.
As for prima facie cases, has anybody seen Warman’s pleadings?
March 26th, 2009 at 6:07 pm
But BCL - just an interesting observation.
We all know “Lucy” was a tad busy with false ids and so on – then turning around and sueing the Blog Owners for posts and alterations he may well have made himself. A civil servant, access to law enforcement databases, connections and the CHRT ruling of Lustig would suggest immediate “suspension” and investigation etc!
Then the Law Society of udder Canada sits on their butts? Me smells a Skunk Works.
Is it possible others took the same “mean and nasty” posts and placed them on “friendly sites” as comments – including the CJC,JDL, Geist’s, Catsmeats and yours? Covered their actions and reported it all to the CHRC as well as the RCMP? Years ago and just waiting?
The FD appeal and countersuit will be ground breaking and hopefully take the law away from litigous lawyers.
Scary and it is what will have to be explained in discovery as to why some sites and not others are subject to libel suits. Big Brother can be so wonderful.
The designation of FD a “ultra/far right” by a judge raised alearm bells for me for it is possible that an MOU with DND/CSIS and the CSE allows MONITORING only if a Judge so rules. And he did?
March 26th, 2009 at 7:08 pm
I haven’t in this matter tw. I suspect you could find them at either FD or Ezra’s..I am hoping to see his affidavit(s) sooner rather than later. I will be interested to see what, if any, expert evidence he brought forward to suggest that IP’s line up with people.
By the way, does $5000 in costs in a motion make sense to you and does 30 days to pay?? My experience is very old and confined to the BCSC but 5K seems a lot. Especially as the Warman side was argued by students – albeit three of them.
March 26th, 2009 at 7:29 pm
$5000 for a motion is definitely on the high side and 30 days suggests a seriously p.o.ed judge. But I don’t know where you got the curious idea that the motion was argued by three students: Warman was represented by a senior associate and a junior associate. the student came along for the ride. And they kicks Babs Zundel butt.
BTW, Warman does have to prove IP = identities. He merely has to prove that IPs might lead him to identities. This is discovery, not trial.
LS: my advice is spend less time at the back end of the cows. The methane has clearly muddled your thinking.