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.
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.
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:
- 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.
- 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.