Two courts rule on identity protection for online commentators
Courts in Nova Scotia and Ontario recently issued conflicting decisions on the ability of a plaintiff to compel a website to reveal the identities of online commentators.In both cases, the plaintiff in a defamation suit sought the identities of individuals who had posted allegedly defamatory comments to a website.In the Nova Scotia case, the court granted the order; in Ontario, the court refused it.The Ontario decision made it clear that such orders are not automatic – the court must be satisfied that there is a prima facie case for defamation, and must also weigh the public interest in disclosure against the freedom of expression and privacy interests of the parties. These issues were not addressed in the Nova Scotia decision.
Mosher v. Coast Publishing
On April 14, the Nova Scotia Supreme Court ordered a newspaper to help identify seven people who posted allegedly defamatory comments on the newspaper’s website.The case, Mosher v. Coast Publishing Ltd., 2010 NSSC 153, involved a Halifax-based newspaper, The Coast, which had published online a story about racism in Halifax’s fire service.
The Chief and Deputy Chief of the Halifax fire department sought to bring an action for defamation against the individuals who had posted the comments. Before the action could proceed, the would-be plaintiffs had to apply to the court for an order requiring The Coast to provide information about the web commentators, who had identified themselves only with pseudonyms.
In granting the order for disclosure of the information, Justice Robertson stated that “the court does not condone the conduct of anonymous internet users who make defamatory comments and they like other people have to be accountable for their actions.”
Warman v. Wilkins-Fournier
Warman v. Wilkins-Fournier, [2010] ONSC 2126 (S.C.J.), decided just a few weeks after Mosher, on May 3, was an appeal of an order to disclose information that could identify individuals who had posted allegedly defamatory comments on an internet message board managed by the defendants.In making this order, the motions judge had found that disclosure was mandatory because the information was relevant and not protected by privilege.
The Divisional Court’s appeal decision disagreed with this, noting that Charter values of privacy and freedom of expression weighed in favour of non-disclosure.The court held that where privacy interests are involved, disclosure is not automatic even if information is relevant and not protected by privilege.The court also noted the potential chilling effect on speech that would result if anyone could obtain information about the identity of online commentators simply by initiating an action. An appropriate balance, according to the court, is established by requiring that the plaintiff establish a prima facie case of defamation before disclosure can be ordered.
The decision in Mosher does not include any analysis of whether a prima facie case was made out, nor does it consider any balance of rights to be met in determining whether disclosure would be appropriate under the circumstances of that case.
