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This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.

The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.

The ‘Wilson’ case

This may be a distasteful case, but the ruling in it establishes an important principle.

Miles Wilson was accused of possessing child pornography.  The police followed a trail where they found an IP address they believed would lead them to the suspect.  The police officer found out that that IP address was served by the ISP provider Bell Canada, and wrote them a ‘form lettter’ requestisng disclosure of the physical location of this IP address.  Based on this information, the police officer obtained a search warrant for the residence indicated, executed the search and found the evidence the police were seeking to prosecute Mr. Wilson.

An analysis of this case from ‘The Court’:

The fundamental issue before Leitch R.S.J. of the Superior Court of Justice was whether, in accessing the accused’s name and street address from Bell without first obtaining a warrant, police had infringed upon the accused’s reasonable expectation of privacy, contrary to s. 8 of the Charter. Remove the legalese and the issue in Wilson becomes far more dramatic: are Canadians free from unbridled state surveillance of their online activities while in the confines of their homes?

…

First, in rejecting the accused’s s. 8 claim, Leitch R.S.J. determined that one’s name and address, or that of one’s spouse, falls beyond the inference-resistant “biographical core” threshold of Plant. Second, Letich R.S.J. found that given the fact that names and address are “information available to anyone in a public directory”, they are, in isolation, largely meaningless pieces of information as far as s. 8 is concerned.

Here, the issue is in the criminal realm, not the civil case we are talking about here.  However, there are aspects of this case which were examined and discussed during the appeal hearing, specifically as related to the IP address, the expectation of privacy and the differences between this case and the one under review.

This is supporting material for my narrative of the ‘Richard Warman v FreeDominion/internet privacy’ appeal hearing on 8th of April, 2010.

The arguments made during the hearing referenced various cases, rulings and precedents. Since I am not a lawyer, nor trained in law in any way, it helped me understand what was going on when I looked up a few of them.

The York University case

York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.)

This is an important case because here, the Norwich order (precedent) was used to obtain information about email accounts from an ISP.

Some people wrote a letter about the president of York University which alleged ‘bad stuff’. York University wanted to find out who sent the email, and sued the internet provides (Bell Canada Enterprises and Rogers Communications) to get the information.  The Norwich order was accepted by the judge (G.R. Strathy J) as applying in this case, as per Slaw.ca:

The 5 elements identified in this case for granting such an order include:

(i) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
(ii) Whether the applicant has established a relationship with the third party from whom the information is sought such that it establishes that the third party is somehow involved in the acts complained of;
(iii) Whether the third party is the only practicable source of the information available;
(iv) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, some [authorities] refer to the associated expenses of complying with the orders, while others speak of damages; and
(v) Whether the interests of justice favour the obtaining of disclosure.
[emphasis added]

…

Additionally, a strong case of fraud removes the possibility of a frivolous or vexatious application of the order.

However, there were some significant differences between the York University case and the ‘Warman v FD/internet privacy’ one.  This is just transcribing a few arguments from my notes from the hearing (any and all errors or misrepresentations are mine and I apologize – it is hard to write things down as fast as people are speaking).

Ms. Matheson for the CCLA (I am paraphrasing, keeping as true as possible to her speech):

The York case is a good decision because it ‘passed the test’ – the judges ruling was based on an established prima facie case.  There was a second reason – the agreement between the users and the ISP – but, the judge did apply the test fist.

Internet encourages free speech and anonymity is a critical component of this speech.

It is not a ‘blank cheque’ for defamation, but due regard must be given to Freedom of Expression. In this case, in front of the court now [the ‘Warman v FD/internet privacy’ case], no such consideration was given.

So, in my amateur observations, it appears to me that the significance of the ‘York University’ is two-fold:

1. The judge first considered the strength and potential validity of the statements which were ‘potentially defamatory’ or ‘fraudulent’.   Only after a strong ‘prima facie’ (or ‘bona fide’ – there was some significant discussion there – it appears that ‘bona fide’ was acknowledged but the strength of it was sufficient for ‘prima facie, which is the test which both the CCLA and CIPPC suggested should be done – I think….but I could be wrong, as the discussion was fast-paced and I could not write that fast…but the fact remains that a strong case WAS established)  case was established – only after this strong case that the ‘speech’ was ‘defamatory’ had been established did the judge rule that the private information ought to be handed over.
2. The anonymous people in the ‘York University’ had a user-agreement which permitted the disclosure of their information to authorities upon request.  This constitutes ‘consent’ to have their names released:  which is not the case in the FreeDominion user agreement, so there is a difference between the two cases right there, meaning a higher standard of proof is needed to compel the Fourniers to release the confidential information about their users.

The ongoing narrative of this appeal hearing is here.

Much of the discussion revolved over just how much justification does one need in order to demand information which could lead to the identification of people who posted anonymous comments on the internet, so Richard Warman couls sue them for defamation.  Can he just demand the information – and just get it released (‘automatic disclosure’), or do the people who hold the information (Free Dominion – Connie and Mark Fournier) have the right to withhold it until a judge decides that Mr. Warman has met either the ‘bona fide’ or ‘prima facie’ standard?

For those of us not trained in law, here is a quick overview of the legal terms ‘automatic disclosure’, ‘Bona Fide’ and ‘Prima Facie’ (as understood by me).

‘Bona Fide’

Latin for ‘in good faith’.

In the context of this case, the term was applied in the sense of ‘establishing a bona fide case’ that information was being sought ‘in good faith’, not frivolously.  For example, coming to someone and demanding the identity of their client carries no obligation to reveal such identity.  If, however, one can demonstrate that one truly intends to sue that client, this might (depending on circumstances) constitute a ‘bona fide’ (non-frivolous) reason for requesting the disclosure.

In effect, it distinguishes between someone requesting the information ‘just because they can’ and someone who truly and honestly needs it for some legal purpose.  Therefore, having to establish a ‘bona fide’ reason for requesting some information is a higher threshold than ‘automatic disclosure upon request’.

‘Prima Facie’

Latin for ‘on the face of it’ or ‘at first look’.

It is similar to ‘bona fide’, in that one must demonstrate a need for some information they would like released to them.  However, the threshold in ‘prima facie’ is higher:  one must not only demonstrate that one wishes to use the information (like, say, by filing a defamation suit), one must also demonstrate that there at least some evidence that, at first look, suggests one may have been defamed.

It does not require one to prove that one was defamed, only that at ‘first look’, he could have been.  A look at the statements themselves is sufficient to establish whether they could, potentially, be defamatory.  If not, then the ‘prima facie’ has not been met and there is no release of information.  If, on the other hand, the statements are such that they could, potentially, be defamatory, then the ‘prima facie’ threshold is met, the information is released and the lawsuit may proceed:  it will now be up to the lawsuit to determine if the statements were true or not (truth of the statements is a defense).

The differences between the thresholds of ‘need’ for the identity of the anonymous posters to the Free Dominion forum became an important theme in the hearing.  So, let me recap what my (untrained) understanding of the differences between them are:

Automatic disclosure:  anyone asks for the identity, claiming whatever reason, the information must be handed to them.

Bona fide case: only after one demonstrates that one has an ‘honest intent’ need for the information, like, say, legal action for defamation, the information must be handed to over.  This protects the anonymous people form having their identity revealed and potentially have their reputation damaged simply due to ‘frivolous requests’ – or from opening them to political persecution.

Prima facie case: only after one demonstrates that the statements which were made about one are indeed potentially defamatory, and that one does indeed intend to take action, must the information be handed over to them.  This protects the people form not only ‘frivolous requests’ for their identity to be revealed, but also from ‘frivolous lawsuits’ which have no chance of being successful, yet which in themselves are being used to ‘punish’ (lawfare and SLAPP suits would fall into this category).

I cannot stress strongly enough that I am not trained in law in any way, shape or manner.  These are simply the things I had to learn in order to understand the principles discussed during the ‘Richard Warman v. FreeDominion/internet privacy’ appeal hearing.  This is meant as a lay explanation – it helped me, I hope it will help you as well…..

More of my observations of this hearing – and tools to understand the case – are here.