I’m about to start transcribing the notes I made at the hearing today, and I’ll post them in chunks on this thread, so keep watching.
Keep in mind that I made no attempt to quote people verbatim because I can’t write that fast. I’ve recorded the gist of what everyone said, and added some of my own impressions.
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I don’t know if there were FDers who tried to find us today and couldn’t locate the Court room. I know of one person who couldn’t find us, and everyone seemed to have difficulty. The issue was that our names weren’t on the docket, it only said “Divisional Court”. For those of you who tried to come and couldn’t find the room, I’m really sorry we missed you.
When we went into the Court room, there were a large assortment of lawyers at the front. It turned out that the majority of them were our intervenors, so we were happy to see this. The panel of three judges came in and asked the lawyers to identify themselves. In attendance were:
Wendy Matheson, representing the Canadian Civil Liberties Association
Madeline Biderman, Canadian Civil Liberties Association
Barbara Kulaszka, representing us
Tamir Israel, representing the Canadian Internet Policy and Public Interest Clinic
Stephanie Lewis, representing Richard Warman, and
James Katz, representing Warman
Also in attendance was David Fewer from the Canadian Internet Policy and Public Interest Clinic, but he didn’t make any submissions.
I will have to get back to you with the names of the panel of judges because I forgot to write them down.
The Court room was much larger than the one we were in for the motion hearing in Toronto last week, and there were lots of chairs for spectators. We had two friends join us, there was another young woman who sat on the far side and was, I believe, part of the Katz team, and one other young woman who sat in the very middle and didn’t talk to anyone. We were speculating that it might be Lucy Aubrack or Mary Dufford standing in for Richard Warman because he wasn’t there.
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The first person to take the stand was our faithful lawyer, Barbara. I can’t imagine what it must be like for lawyers to stand up there and face down THREE judges!
The first point that Barbara made was that Free Dominion is a political message board where we talk about news from a conservative perspective. I was glad to hear this because I, like many people here, was annoyed by the way that the motion judge had characterized Free Dominion in the motion we were appealing.
She said that our appeal raises issues of what protections will be afforded to anonymous posters. Immediately, one of the judges jumped in and said, “You mean, what protections, if any.” Mark and I looked at each other and gulped. It was obvious this wasn’t going to be easy.
Barbara stressed that IP addresses and email addresses are capable of identifying John Does, and that they can reveal much more than their identities. She said that if you google an email address, you can often find it on many other sites. Some of those sites can contain postings that are of a very personal nature.
She went on to say that you can compile a total profile on someone using just their email address, and that profile can contain information about lifestyle choices, beliefs or health problems.
There was a bit of back and forth at this time because the panel of judges didn’t seem to be getting that information that could be obtained from an email address could also be obtained by tying a username to a real person. That was never really resolved satisfactorily because there were some misunderstanding in how the questions were being asked and answered. But, we knew from reading our intervenors’ factums (is that a word?) that they would be addressing this issue very shortly.
After Barbara made her brief preliminary statements, she deferred to the intervenors to address those privacy issues.
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I got ahead of myself a bit there, and I forgot a bit of what Barbara said.
She talked about balancing the rights of the plaintiff and of the anonymous posters. One of the judges asked her if a publisher had published a book for an author who wrote under a pseudonym such as Mark Twain, would the publisher be required to reveal the name?
Barbara said that she believed he would, and that the online world is different because so much information can be obtained when a person has spent so much time online.
Another judge asked if we should use the emails ourselves to try to find the identities of the Does and turn the information over. Barbara said that there is nothing in the law that would oblige a defendent to go through multiple steps to find identities, that we are only to turn over existing documents.
As an aside, Barbara mentioned the issue with the server clock. It has been notoriously wrong at times and the dates on the posts in the database are not reliable. This really means that the IP addresses could be used and people could be misidentified, but the judges didn’t seem to understand her point…I guess it was a bit too technical. One judge just responded that he didn’t think that meant anything and that considering it would just be an open invitation to make sure people have a defective server clock.
Barbara mentioned that Richard Warman has been able to identify four of the John Does already. She said that, since he knows the identities, she felt that the appeal should be allowed on those four. The judges said that they didn’t want to allow the appeal on those four because it would set a precedent they might not intend to set, but that James Katz (Warman’s lawyer) could stay the motion with respect to those four people. That means that the email and IP information will not be turned over for the known John Does.
Barbara asked Katz if they knew who any of the other John Does were. Katz looked like he didn’t know what to say for a few moments, then one of the judges said, “You are working on it?” and he said, “Yes, we are working on it”.
Make of that what you will.
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The next person on the stand was Wendy Matheson representing the CCLA. She was a very dynamic speaker, and she knew exactly what she was talking about. Wendy said that the position of the CCLA was that in NO CASE should the identities never be disclosed, but that it should not be automatic. Automatic disclosure of personal information on anonymous posters creates Charter Rights issues.
Wendy said that the basis on which the motion ruling was made was flawed in an important way. She said that people who are in possession of personal information should disclose that they have it, but state that they are objecting to the disclosure. Then, to order production, the Court must establish that there is a prima facie case against the anonymous posters. [This means that it has been demonstrated to a court that a case can be made that the anonymous posters actually defamed the plaintiff. It would mean that frivolous claims could be dealt with without ever having to disclose personal information of innocent posters].
Further, it is the position of the CCLA that the Party who is in possession of the information should take reasonable steps to inform the John Does that they are being sued so that they can choose to come forward and fight if they wish.
Wendy said that the CCLA was asking for a prima facie test to be applied in these cases, but, given the Charter Rights issues, the standard should really be even higher.
In describing what would be required to prove a prima facie case, Wendy suggested that it include an Affidavit from the plaintiff stating that the posts were made and that they were false and defamatory. When asked by the judge if she thought it was important that the Affidavit say that the posts were false, she said that it should.
She said that this would screen out people who are doing this for improper purposes.
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There was a lot of discussion during this hearing about a case they called “Norwich”. The case law from that case requires that the plaintiff show a bona fide case before they get personal information about anonymous Does. A bona fide case simply means that the plaintiff has a genuine intention to sue them.
Wendy went on to say that there had been some discussion about the frailty of the information (the IPs might be wrong or might not exist), but that we needed to consider what the process should be if the information is right. She mentioned a case she called “Wagg”, where the ruling showed that obligations under civil procedure are subject to the Charter.
She came back to the Mark Twain analogy because that analogy was used in the Wagg decision, and the court concluded that anonymous speech is protected.
A judge said that you must decide if a post was made with a reasonable expectation of anonymity.
Wendy said that the Court must have the opportunity to balance the interests of the anonymous posters and the plaintiff in these cases.
Wagg indicated that Charter Rights are an issue. In the test for that case, it was asked:
Is it relevant?
Is it privileged?
Are Constitutional rights at stake?
Wendy continued, saying that freedom of expression is at the forefront of a defamation case. The Supreme Court of Canada has been talking a lot about this recently. Freedom of expression is one of the most fundamental rights we have, and that true freedom of expression must protect speech we don’t agree with, even offensive speech.
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The next case that Wendy brought us was a York University case. This ruling stated that a user has the ability to roam the internet with anonimity. In this case, the test that was applied was a bona fide case. The internet is a revolutionary tool for free speech, and anonymity is a critical component of that free speech. Nobody is suggesting, however, that freedom of expression provides a blank cheque.
The point was made that the Wagg case was not in front of the motions judge who made the ruling we are appealing. It came after.
In the York University case, apparently disclosure was eventually ordered.
A judge asked if, in that case, it was decided because there was no reasonable expectation of anonymity.
Another judge remarked that, in our case, there is no consent from the John Does so anonymity is expected.
Another case was cited, I didn’t get the name, which dealt with a City Ordinance that stated that hand bills must have a name and address on them, or you could not hand them out.
Wendy talked about how anonymous pamphlets have played an important part in history. Historically, anonymous speech has allowed for speech that would not have been possible. One example is the Federalist Papers.
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Wendy said that any defamation case requires a consideration of freedom of expression. She said that the Supreme Court of Canada has shown a trend in favour of freedom of expression. Beginning with the Casey Hill case where the Supreme Court said that privacy is grounded in man’s autonomy and that reputation protection must be balanced with protection of privacy and that they are equally important.
In 2008, the Supreme Court considered a case against a controversial radio host. They said that traditional tort regarding defamation needs modification to protect free speech, and that there has been a chilling effect from defamation.
In a case last year, the Supreme Court said that the balance is off between freedom of expression and reputation protection, and that reputation protection is currently given too much weight.
Wendy said that the mere allegation of defamation is not enough to defeat freedom of expression. Commencing a defamation suit does not take away the Court’s responsibility to proect freedom of expression.
She went on to say that privacy finds its way into Charter rights. She said it is a component of Section 7. There was a case called BMG which was about music sharing. The court found that a test was necessary before the anonymity of the anonymous Does could be broken, this case involved a request on a third party for information. [this becomes important later] In any case, Wendy said that a test was required in this case and that the ability of a defendant to share music is surely less important than the right to anonymous speech.
One judge asked, “When someone chooses to use a very public forum, doesn’t he waive his right to privacy?”
Wendy responded that privacy is tied to their identity, and that privacy is a Charter value, if not a Charter Right.
She went on to say that interests of privacy are increasing, not decreasing. The Court below [the Motion court] has given no consideration of privacy.
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There was a bit of back and forth discussion of a scenario where an abused wife could be posting on a forum and it could be decided that it was unsafe to reveal her identity. Both Wendy and the judges worked at fleshing out the scenario.
Wendy said that society is being forced to conduct our lives online. It is unreasonable to say that if you want to protect your privacy you should have to stay off the internet. She said that the most reasonable test would be to require a prima facie case and a balancing of Charter issues. She said that protection of 2B Charter Rights is more powerful than defamation.
The Supreme Court of Canada has acknowledged the chilling effect of defamation claims.
Wendy said that is a well established line of authority for discovering identity in order to sue someone in a case she called Norwich. In this case, the plaintiffs sued Customs and Excise for information related to a trademark case. This case required a five part test and a principled approach. Cases that used the “Norwich rules” were not constitutional, but discovery was still not automatic.
A very powerful argument was made by Wendy that, if this motion ruling stands, it will make cases like BMG where plaintiffs have to prove a prima facie case in order to get information from a third party, moot. She said that proving a prima facie case will be avoided when a plaintiff simply adds the information holder to the statement of claim as a party.
For instance, if you wanted the information on someone and Sympatico held the information, you could just name Sympatico and they would have to turn it over without meeting the usual test.
Wendy said that it is a disappointment to have to consider protential unprincipled behaviour in making this decision.
She closed her remarks by reiterating that disclosure should not be automatic on the issuance of a Statment of Claim. She said it is insufficient in a lawsuit to simply name the information holder and get the information, there must be a process. A process which ignores Charter right and values, she stressed, should not be adopted.
The Norwich test has been adopted by the Federal Court of Appeals.
That was the end of the sumbissions for the CCLA.
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