Monday, March 30, 2009

Free Dominion appeals order to disclose anonymous posters in Warman suit

Willie The Lyon is calling for bloggers to link to his call to raise money for Connie and Mark Fournier's/Free Dominion's appeal of a recent judicial decision in their lawsuit: Dust my Broom - Help Fight For Internet Privacy and Free Speech. Richard Warman is suing Free Dominion and some of its anonymous posters for defamation.

The decision in question concerns whether the Fourniers should be obliged to release information that would allow Warman to identify those anonymous posters he wants to hold liable. Now, as I understand the law, it is normal for Canadian courts to allow plaintiffs to access the records of internet service providers and web sites in order to identify those on whom they wish to serve suit. Furthermore, I tend to think that individuals should be able to protect themselves from serious libel posted anonymously. So, while I have a strong inclination to take the side of those Warman targets as part of his falsely-called "human rights" crusade, I was not sure whether this particular appeal of the Fourniers' order to disclose information was worthy of support.

However, looking into it a little I see there are some serious legal arguments that the judge has gone too far in assuming an automatic right for a plaintiff to demand disclosure of anonymous posters. For example, Michael Geist notes the judge required Warman make no prima facie case that a libel has in fact occurred:
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.
A more developed argument, citing US case law, comes from Garry Wise. Speaking, apparently, to an often censorious, left-leaning group-think, Wise argues:
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.

This is an unacceptably broad entitlement to disclosure that unnecessarily threatens the reasonable expectation of online anonymity that many have come to take for granted.

The freedominion owners, however, indicate that they are unlikely to appeal the ruling.
This last however is not the case. Connie and Mark report that they spent today hurrying to file an appeal.

Readers with money to spare should give some thought to supporting the Fourniers in their defense of internet freedom. Here is their donation button.

No comments: