An Ontario Superior Court judge has ordered a pair of website owners to turn over identifying information about eight people being accused of defamation after posting anonymous comments.
"In my view, the defendants are under an obligation to disclose all documents in their power and control," Justice Stanley Kershman said in a ruling delivered Monday to defendants Connie Wilkins-Fournier and Mark Fournier of Kingston, Ont., who run the website Free Dominion.
Kershman also ordered the couple to pay $5,000 in costs to the plaintiff in the case, Ottawa human rights lawyer Richard Warman, described by Kershman as an "anti-hate speech advocate."
Warman had requested, for use in a court action, access to documents that would assist in identifying the anonymous posters and their locations, such as:
- Email addresses and all personal information.
- The IP addresses of their computers.
- Documents concerning the establishment and operation of the website, such as hosting agreements, billing information, and website registrant names.
The Fourniers had argued that people using the message boards do so with the expectation of anonymity and may make statements or provide information that they wouldn't normally with family, friends or co-workers.
However, Kershman cited a 2004 case that said privacy cannot be used to protect a person from the application of civil or criminal liability, and that privacy rights must be balanced against the rights of other interests and the public interest.
He also cited a 2008 child pornography case, in which a judge ruled that a person's name, address and the name of their spouse are not information that one would expect to keep private from the state under such circumstances.
Fournier, posting on the Free Dominion website late Monday, said the ruling has a number of implications.
"Most importantly it means that anyone can gain access to a Canadian forum owner's confidential records on its members simply by filing a lawsuit (that could later be dropped) against the forum operator."
However, he said the couple did not have the funds to appeal and will likely have to comply with the ruling.
University of Ottawa law professor Michael Geist, posting on his blog Tuesday, expressed concern that the decision "feels like a judge anxious to order disclosure, despite the weight of authority that provides some measure of privacy protection for anonymous posters."
Geist said the court must ensure that a proper balance is struck between the rights of a plaintiff and the privacy and free speech rights of an anonymous poster. In order to do that, it must set a high bar for plaintiffs to meet in order to justify overriding the poster's rights.
The website in question is described in the ruling as "so controversial that it is blocked to employees of the Ontario Public Service" — something that Geist said is "not much of a threshold."
Warman is in the process of suing the Fourniers, alleging they "falsely and maliciously published and circulated" information on the site that claimed Warman had posted hateful, racist words. The allegations have not been proven in court.