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).
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’.
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.