With Connie’s permission, here is how she saw, heard and understood the hearings of the ‘Warman vs FD John Doe Appeal’, as transcribed from her notes and posted here, on Free Dominion.
Part 1 is here. This is part 2.
The next person up was Tamir Israel representing the Canadian Internet Policy and Public Interest Clinic (CIPPIC). He is a soft-spoken and intelligent young man and he, too, had a firm grasp on the issues at stake here.
He started by saying that the position of the CIPPIC was that anonymity should not be an absolute shield. (We agree with all of our intervenors in that regard, btw).
Tamir said that privacy, through the lens of anonymity, should be protected. He said that the online sphere has unique issues which force privacy issues to the forefront that weren’t visible before. He continued saying that the problem with the online sphere is that activities that used to take place in a more private setting are now occurring in a semi-private setting online. He said privacy is control over your personal information, and that there is a reasonable expectation of privacy.
Tamir went on to say that anonymity is important for allowing people to do things they once did in private, like having conversations with friends, political speech etc., in a semi-private sphere.
Tamir hit a huge bullseye when he said that, in criminal cases, a warrant is required in order to get personal information, and that the warrant was only issued if there was reason to believe the person was guilty. He also said that information about anonymous posters reveal much more than identity.
One of the judges quickly jumped on this and agreed that there was a parallel between discovery in civil matters and a search warrant in criminal cases.
Tamir said that the position of the CIPPIC was that an intermediary must be convinced that there is wrongdoing. He said it is inherent in the adoption of an alias that there is an expectation of privacy. (Another bullseye!!)
Tamir said that Terms of Service on a website were insufficient to use as evidence that there was no expectation of privacy because the adoption of an alias shows otherwise.
* * *
Next, Tamir talked a bit about the process that the CIPPIC would recommend as a test in these cases.
As far as procedural steps go, if the intermediary is a Party in the action, they should disclose the existence of the information on the John Does. The plaintiff should take steps to try to identify them on his own.
There could be a Counsel for the John Doe if they do not wish to come forward (this, I think, would come out of the balancing that was discussed before). If the standard was a prima facie case, the Court could rule out Does whose comments did not meet defamation standards.
Tamir noted that if a John Doe was outed for the purposes of a defamation suit, the case went to Court and the plaintiff lost, the damage would already be done to the John Doe. He suggested that three things should be considered:
– the strength of the claim
– the gravity of the defamation
– the breadth of the readership
He said that identity is not relevant to assessment of whether or not a comment is defamatory.
Tamir said that an intermediary should use readily available tools to notify the Does that they are being targeted with a lawsuit. Possible tools would be private messages or emails, and that a 20 day limit should be set for this notification.
Tamir stated clearly that the identification between a screen name and a real name is the link that the privacy refers to. It is the context in which they are being disclosed that makes the name private. He stressed that there is an expectation of privacy between a name and a username.
* * *
Tamir Israel was finished his submissions, and it was on to James Katz representing Richard Warman.
Katz seemed pretty relaxed and ready for his turn as we waited for the judges to return.
Katz started out by saying that he disagrees with the use of the BMG case and the Irwin Toy case as examples in this case because they applied to third parties (ie the people with the information were not being sued).
Immediately, a judge asked him about the case that Wendy made about the potential for abuse where a plaintiff would simply sue the information holder, too, to get around having the prove a prima facie case. Another judge asked why there should be a test in cases where the information comes from third parties, but not when the information holder is a party in the case. They asked him if he saw a distinction in principle that would justify the different standards.
Katz said that he didn’t see a distinction in principle.
At this point, Katz started talking about how what Warman was requesting was a different KIND of information. I, honestly, wasn’t really sure what he was trying to say, and I don’t really think the judges were either because they looked a bit puzzled.
One distinction that Katz was making was that an IP address, by itself, would not lead directly to the Does, and that a prima facie case would be required at the next level when they wanted subscriber information from the internet service providers.
A judge said, “Your argument turns on the Court being satisfied that individuals cannot be identified directly by this information.”
Katz replied that the “nature” of Free Dominion makes him believe that the emails wouldn’t identify them because they want to hide behind these identities and they would be “pretty good at covering their tracks”.
* * *
I forgot to mention that Katz started his statement by reading a list of names Warman was called by our members. “Thug, Nazi, brownshirt…”, and some that are too awful to even mention.
* * *
Katz cited a case called Caro Energy Limited. He said that an IP address is a tool that can be used by a third party to identify a computer. A judge jumped in to say that nobody was arguing that this information was relevant.
Another judge, again, brought up the point that email addresses could result in directly identifying Does. Katz said that Warman would prove a prima facie case for the third parties in regard to the IP addresses. He says that the rules for Simplified Procedure state that info that is not privileged should be produced and that Judge Kershman looked at privacy considerations when he made his ruling on the motion. Katz cited the Wilson case that said there was no expectation of privacy with an IP address. A judge said that, in the Wilson case, the Does consented to the release of their information and that our John Does chose to be anonymous.
At this point, Katz brought out the FD user agreement and read the part that states that if you break the law we won’t protect you and you are on your own. I guess because it hasn’t been proven that any of the Does have broken the law, this line of thought didn’t really go anywhere and it was dropped quite quickly.
A judge asked Katz if the motions judge erred in saying that relevance and privilege are all that is important in deciding if information should be disclosed.
Another judge quoted Kershman where he talks about Irwin Toy in his ruling. The judge asks Katz, “Isn’t that a rejection of the privacy issue?”
A different judge said that the Kershman ruling appears to be a conclusion of law, and that his decision regarding privacy did not seem to be related to specific evidence before him.
A judge remarks that Kershman appears to have based his decision on Wilson because it was more current.
When asked by a judge if he felt that Kershman had made an error in law, Katz said he didn’t think so.
Katz concluded his submissions by stating that Warman would be willing to attempt to meet a test if the judges rule that a test needs to be met. He said Warman is very serious about protecting his reputation.
* * *
After Katz finished his submissions, the judges gave our side the chance to respond.
Tamir Israel kicked it off by saying that PIPEDA rules say that IP addresses ARE identifiers and need to be protected as such. He used the example of a social insurance number. The number itself can’t lead you directly to a person, but, using that number, you can get all kinds of information about the person.
He reiterated that a prima facie case can be made without knowing the identity of the Doe. Issues such as malice would not been to be proven at this stage.
Tamir finished by arguing for a prima facie case to be the standard with a balancing of interests afterward.
Wendy then took to the podium again and talked about Section 8 rights. She said there had to be a consideration of the totality of the situation, and she pointed out that there was consent from the Does in Wilson, it didn’t really relate to our case. Wendy said that it is important to remember that a test must be applied to make sure privacy issues are considered. She said that a fair reading of the decision in our motion shows he felt the Simplified Procedure rules were absolute and that there was no affirmation of freedom of expression as a Charter Right. She continued, pointing out that, on BMG, Kershman simply said that the rules were different for third parties.
Finally, Wendy read from the Kershman ruling where he said that the plaintiff is an anti-hate speech advocate, and defendants whose “website is so controversial that it is blocked to employees of the Ontario Public Service.” Wendy said that Kershman is being disapproving of the speech on FD. She said that he is saying that this is controversial speech, so that is a reason to reject…REJECT the Charter issues. She finished up by saying that if Kershman did consider it, he was wrong in law.
Barbara chose to let Wendy’s powerful last words wrap up our case for us, so we were done.
At this point, the judges asked us to stick around for 15 minutes because they wanted to talk and then come back and maybe ask some questions.
* * *
After the recess, the judges came back and they had two questions. They wanted the parties to agree on costs, and it was agreed that the losing Party would pay $10,000 to the winner.
Then, they asked an interesting question.
The judges wanted to know, because there is a prima facie test when someone requests information from a third party, how you would prevent duplication if you added another test at the “lower level”. (For example, if they had to pass a test to get the IPs from us, then had to pass it again to get the subscriber information for those IPs from Bell).
Wendy said that it is wrong to assume that there would always be a second step. After the first step, the John Does could be identified though their emails. She said that if there was another application for information, if there is consistency in law, they could simply pull up the first motion and make a few changes and submit it again for the new information. The costs would be minimal. She also noted that ISPs don’t usually oppose motions for information if they meet the BMG test. In any case, Wendy said, the cost is small compared to the rights at stake.
Tamir got up to say, also, that the Court can incorporate the need for ISPs to disclose subscriber information into the first order so that the same order can be used at both levels.
With that, we were done!
This is it – in Connie’s own words!
While many of my observations were similar, there were several points I saw/heard/understood quite differently. I apologize for how long it is taking me to write up my take on this, but, I am a slow thinker, slow writer and it is taking me forever to decipher my handwriting in the 48 pages of notes I took. So, please, bear with me – my version of the event is coming ‘soon’!
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