The ‘York University’ case

April 13, 2010 — xanthippa

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.

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The ‘Norwich precedent’

April 13, 2010 — xanthippa

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 Norwich Case

Norwich Pharmacal Co v Customs and Excise Commissioners [1974]AC 133, 175, HL

From the ‘Cambridge Law Journal’:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

This case deals with disclosure of private information:  when and how.

In Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133, the owner of a patent knew that infringing goods were entering the UK, but could not ascertain their identity. The Commissioners, in the course of performing their duties, had information that would identify the imports. Also, they had unknowingly played a part in facilitating importation of infringing goods. The House of Lords found that where a third party had become involved in unlawful conduct, they were under a duty to assist the person suffering damage by giving them full information and disclosing the identity of wrongdoers.

In other words, the ‘disclosure’ of private information by a witness is not ‘automatic’ but some threshold of proof has to be met to satisfy a judge that the request is reasonable and for the information to be released.

However, if the person who holds the information sought is ‘an accomplice’ (in some way – knowingly or not), if that person is facilitating the ‘wrongdoing’, then they are compelled to release all relevant information right away.

This became important during the ‘Warman v FD/internet privacy’ case, because Free Dominion and its administrators, Connie and Mark Fournier, were named as co-defendants in the action by Mr. Warman.

The question, in my never-humble, not-legally-trained, opinion is whether the Fourniers are simply witnesses, or if they are also culpable in the defamation.

If they are simply witnesses who hold private information, then they cannot be compelled to release it until a judge is satisfied there is a ‘prima facie’ – or at least ‘bona fide’ case to do so.  (Yes, there was much back-and-forth as to which threshold, ‘bona fide’ or ‘prima facie’ ought to be used.)

If they are also partially guilty, then it is their duty to turn all information they might have over, right away.

That is the relevance of the Norwich precedent to this case.

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‘Automatic disclosure’ vs ‘Bona Fide’ vs ‘Prima Facie’: the differences

April 13, 2010 — xanthippa

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.

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What the ‘Warman vs. FD/internet privacy’ case is all about

April 13, 2010 — xanthippa

When the ruling in this case was released in March of 2009, there was much commentary by smart and learned people of what this case is all about and what its implications are on our society.

Michael Geist is a law professor at University of Ottawa, where he holds the Canada Research Chair in e-Commerce and Internet law.  He is also the founder of Canadian Internet Policy and Public Interest Clinic (CIPPIC), an intervenor in the appeal hearing.  This is what he had to say:

Protection for anonymous postings is certainly not an absolute, but a high threshold that requires prima facie evidence supporting the plaintiff’s claim is critical to ensuring that a proper balance is struck between the rights of a plaintiff (whether in a defamation or copyright case) and the privacy and free speech rights of the poster.

Read the full post here.

Don Butler has a piece on the appeal:

Their decision could chill whistleblowers and others who use pseudonyms to post controversial comments, say civil libertarians.And, they maintain, if the judges support unmasking anonymous posters, that could erode their privacy by allowing others to piece together vast amounts of personal information.

Read the rest here.

So, yes – the implications of this ruling are ‘big’.

Please, keep in mind that I have no legal training whatsoever – so I am only commenting on what I saw and heard, as I saw and heard it.  But, having watched the appeal hearing, this is what I understood to be the issues this case revolves about:

  • Mr. Warman saw a number of posts on FreeDominion, a conservative discussion forum, which posted either comments that Mr. Warman considered defamatory, or which linked to a completely different website, where some other people made statements Mr. Warman considered defamatory
  • Mr. Warman decided to sue the anonymous posters – and Mark and Connie Fournier, the administrators of FreeDominion
  • The Honourable Mr. Justice Stanley Kershman decided in favour of Mr. Warman and ordered the Fourniers to release the information sought
  • The Fourniers have appealed – hence, this hearing.

It is important to understand Justice Kershman’s ruling, so we can understand the grounds of the appeal.  From the ruling (the links are mine):

[13] The Plaintiff relies on the case of Lillie v. Bisson, [1999) OJ. No. 3677 (CA.), a case
in which the Ontario Court of Appeal says that courts should encourage a liberal interpretation of
Rule 76 in order to reduce the cost of litigating modest sums.

…

[15] Tue Defendant relies on Irwin Toy for the proposition that disclosure should not be
automatic upon the issuance of a Statement of Claim:

If such were to be the case, the fact of the anonymity of the internet could be
shattered for the price of the issuance of spurious Statement of Claim and the
benefits obtained by the anonymity lost in inappropriate circumstances.

(16) The Defendants argue that the Plaintiff must establish a prima facie case by way of
affidavit evidence before disclosure is ordered.

…

[33] In the case before the court, we are dealing with an anti-hate speech advocate and
Defendants whose website is so controversial that it is blocked to employees of the Ontario
Public Service.

The Honourable Mr. Justice Stanley Kershman ruled that the Fourniers (of the ‘controversial website’) must ‘automatically’ hand over all information which could lead to the identification of the ‘John Does’ to the ( ‘anti-hate-speech advocate’):  hence, the appeal!

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The ‘Warman vs. FD/internet privacy’ appeal hearing: the facts

April 12, 2010 — xanthippa

Thursday, 8th of April, 2010,  the Superior Court of Ontario held an appeal hearing of the ‘Richard Warman vs. Connie Fournier, Mark Fournier and John Does’, often also referred to as the ‘Richard Warman vs. Free Dominion’ case and the ‘Richard Warman vs. internet privacy’ case.

But, let me start at the beginning.  Let me stress that I have absolutely no legal training, so these are my personal observations and should in no way be considered to be anything other than those of a regular person trying to make sense of this case and its implications on our daily lives.

First, the facts:

The case was appealed.  The Canadian Civil Liberties Association and the Canadian Internet Policy and Public Interest Clinic requested and were granted intervenor status.

So much for the ‘dry facts’!

More of what I have said about this hearing is listed on this page.

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‘Warman vs. internet privacy’ case appeal hearing, part 3: introductions

April 11, 2010 — xanthippa

They narrative of my observations of this event started out in a rather tongue-in-cheek manner:  fully aware of the importance of this case, this was my way of relieving some of the tension.  However, now that I will be describing the proceedings themselves, my reporting will be as accurate as possible. Connie Fournier’s observations of these same proceedings can be found here and here.

When I last left off, the 3 judges had entered the courtroom, dispensed with another matter and invited all the lawyers present – for both sides in the action as well as the two intervening parties.

Describing positions as seen from the spectator benches in the courtroom, the introductions began on the right:

On behalf of the intervenor Canadian Civil Liberties (CCLA), there  were

Representing the appellants, Connie and Mark Fournier, there was

On behalf of the intervenor Canadian Internet Policy and Public Interest Clinic (CIPPIC), there was

On behalf of the complainant, Richard Warman, there were

Very interesting group of people!

The judges did not introduce themselves.  However, these are their names (again, the order is from right to left, as observed if one had their back against the ‘main’ door):

  • The Honourable Mr. Justice Herman J. Wilton-Siegel
  • The Honourable Mr. Justice James C. Kent
  • The Honourable Mr. Justice Thomas A. Heeney

I do not know the name of the Clerk of the Court or the Bailiff.

As I said in my earlier post, the spectators included David Fewer, as well as Connie Fournier, Mark Fournier, Guy Poirier, a young woman whom I presume to have been an aid to the Katz/Lewis team, an unidentified blond woman in a gray pantsuit and myself.

Surprisingly enough, these were all the people there!

    Posted in freedoms, opression, society, technology. Tags: , , , , , , , , , . 1 Comment »

    My observations from the ‘Warman vs. internet privacy’ appeal – part 2

    April 10, 2010 — xanthippa

    When my narrative last left off, I had finally arrived!

    (Connie Fournier’s excellent report is here and here.)

    It seemed like a miracle, but, despite my bumbling and probably due to more luck than skill, I had found Courtroom #36 where the hearing of the appeal of the Richard Warman vs. the Free Dominion folks, Connie and Mark Fournier and their users, was being held. There were none of the throngs of reporters I had expected – perhaps their quest in finding this well-concealed hearing was less successful than mine.

    After exchanging greetings with Mark and Connie, as well as Guy Piorier (a blog reader who also came to lend his support to the Fourniers), it was time to get oriented a little.

    I was there in time – he courtroom was still locked! The hearing had been scheduled for 10:00 o’clock. So far, so good.

    So, how much time was there before things got going? A quick glance at the clock just to the left of the courtroom door said it was…. 10:34.

    10:34?!?!?

    Ah – it was showing ‘real time’! Not the ‘we-stole-an-hour-from-you-and-you-can’t-do-anything-about-it’ time! OK – let’s get that adrenalin back under control….

    10:45 – as the clock read: a huddle of black robes just outside the courtroom door. Yup – the door is still locked.

    The air is positively crackling with anxious anticipation!

    10:50 – as the clock read: doors opened and the lawyers – plus whom I presume to have been a support person to one of their ‘groups’ – and all the waiting spectators enter Courtroom #36.

    Stepping into the courtroom was like taking a step backwards in time. By about an hour. The clock inside was set to the Daylight Savings Time.

    OK – I am new at this ‘on the grounds, reporting’ thing, but, I seem to recollect that I am to give as many facts as I will have managed to collect. Here, then, is the full and complete list of spectators who entered the courtroom: Mark Fournier, Connie Fournier, Guy Poirier, David Fewer and, well, yours truly. Yes. That is it. In total.

    Instead of fighting for a seat with throngs of other spectators, as was my fear, I now had a different dilemma with respect to finding a seat. Do I sit on the bride’s side, or the groom’s side?

    Is referring to the sides as ‘bride’s’ and ‘groom’s’ disrespectful to the court?

    That box in the middle – that is ‘the prisoners’ box’ and, apparently, it is disrespectful to refer to it as ‘the penalty box’. I know, because I asked.

    Things did work themselves out. There were 3 sections of seats: one on each side and one in the middle, right behind the prisoners’ box. Mr. Fewer took a seat on the left (all the ‘side’ references I’ll make are as if you were to stand with the ‘main’ door immediately behind your back), towards the front. The young woman whom I presume to have been a support person to the ‘Warman’ lawyers sat a few rows behind him.

    I followed Connie and Mark towards the front right, where we shared a row, while Mr. Poirier sat right behind us.

    The lawyers resolved themselves into seats at a long table immediately in front of the prisoners’ box, with their backs to us, spectators. Their 6 chairs were facing forward, divided in the middle by a lectern they would speak from when making their submissions to the court (I think that is the proper term – if not, please excuse me….the sum of my ‘legal experience’  is watching ‘Jurisprudence’ on TV, so these are all strictly the observations of a legal amateur).

    Immediately in front of the lawyers’ table, and slightly raised, was the Clerk’s table – he sat facing us. At the left side of the Clerk’s table sat another person.

    10:02:10 – a deep hush descended on the courtroom. The atmosphere was so thick, you could not just ‘cut it with a knife’ – you could chip at it with an ice-pick! The only thing we could hear was the distant heartbeat of high-heeled pumps, drumming purposefully through the corridors of justice…

    10:05:15 – another spectator wafted in. A young blond woman in a gray pantsuit, high-heeled pumps and a perplexing demeanour. She sat in the very middle of the ‘spectator area’, which took up roughly 2/3 of the area of the room.

    I called her demeanour perplexing, and, to me, it was. It was not so much what she did – but how she did it. She sat there. Very, very deliberately, she avoided all eye-contact, looking either directly ahead or at her very nice shoes. If my shoes were that nice, I’d probably spend considerable time looking at them, too – but she did not look like she had the industrial dose of OCD that I do, so that is probably not saying much.

    Perhaps she had a tooth-ache. She would come in at the last moment, then rush off, at the start of each break, so nobody could say hi to her (I would have liked to have). But, I am getting ahead of myself!

    10:05:45 – announced and ushered in by the bailiff (who looked nothing like Bull Shannon), the 3 judges who would be hearing this appeal entered the courtroom.

    They did look very official (in a good way). They wore black lawyers’ robes, but with a crisp, bright red sashes t top the off.

    Upon taking their seats, the judge in the centre went over some correspondence from an appellant from a case that was put before the Fournier one, but where the appellant had mistakenly showed up the day before the proper date (perhaps the appellant got help form the information kiosk), so they agreed to hold that hearing over till the 10th of October, 2010.

    At this point, the person sitting at the side of the Clerk’s table was excused.

    Next, the judges invited everyone to introduce themselves….but, that shall be then next instalment in my report. And, as the real, serious stuff is about to start, I’ll try to minimize injecting humour to relieve the tension of this truly important legal event.

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    Connie Fournier’s take on the ‘Warman vs. Free Dominion’ appeal hearing, part 2

    April 9, 2010 — xanthippa

    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’!


    Posted in freedoms, opression, society, technology. Tags: , , , , , , , , . 4 Comments »

    Connie Fournier’s take on the ‘Warman vs. Free Dominion’ appeal hearing, part 1

    April 9, 2010 — xanthippa

    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.

    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.

    *  *  *

    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.

    *  *  *

    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.

    *  *  *

    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.

    *  *  *

    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.

    *  *  *

    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.

    *  *  *

    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.

    *  *  *

    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.

    *  *  *

    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.

    *  *  *

    To be continued…HERE

    Posted in freedoms, opression, technology, war. Tags: , , , , , , . 5 Comments »

    A day in law-law land

    April 9, 2010 — xanthippa

    Yesterday, 8th of April, 2010, I spent the day at the Ontario Courthouse at 151 Elgin St, downtown Ottawa.

    No – I am not in trouble.  At least, not more than the whole thing of ‘breathing’ implies.  Rather, I went to see how the appeal case of ‘Richard Warman vs Personal Privacy and Internet Anonymity’.

    I will be writing that up shortly – and posting link to Connie Fournier’s write up of it.  But, I have about 48 pages of notes, so it’ll take me a while to write it up (most of that time will be spent in trying to decipher my handwriting).

    This post is called  ‘A day in law-law land’ not because the case itself is not meritorious, nor because it was not argued well.  It was the ‘getting there’ that felt like being in one of those weird Kafkaesque dreams….much of it due to my unpreparedness, I’m sure, but also because I am so very unfamiliar with he mechanics of how a courthouse operates.

    After packing my ‘little ones’ (OK – they are taller than I am) off to school, I headed downtown, to the heart of the City of Ottawa, to witness our legal future being made.  In my never-humble-opinion, this is a very important case because it is in the intersection of several really, really important issues which our society really needs to ‘figure out’ how to ‘deal with’:  privacy issues, freedom of the internet, freedom of speech.

    You know, the biggies!

    So I figured that I would have no problem figuring out where ‘the case’ was:  just follow the throngs of reporters and TV crews and all that!

    Since the Courthouse is right next to the Ottawa City Hall, and since the Ottawa City Hall is -by far – the cheapest place in downtown Ottawa to park (it cost me just $12.00 for the whole day!), I parked there.  But, it meant that I entered the Courhouse through a door in the back, not the main entrance.  People stood all around, smiling so as not to look nervous – or just giving up and looking grim.

    Lots of people were marching around in a self-assured way,  some pulling little suitcases on wheels.  You know, sort of like pilots and stewards/stewardesses do – but without the smiles.  Since we were nowhere near an airport, I figured that there had to be another purpose to this and resolved to devote some of my time to observing it further in the hope of figuring it out.  But not now – now I had to find the courtroom where this appeal case was being heard, in the hopes of getting there early enough to be able to squeeze in, get one of the last available seats in the courtroom…

    No throngs of reporters in sight….

    So, I started to walk around – I was bound to see them somewhere!

    After wandering about for about 10 minutes, I still did not see any gaggles of reporters.  Nor any information booths – I’d been on the lookout for these for the last 7 minutes or so, too:   just in case.

    Circling back to the main entrance, I began to suspect that the big desk with huge signs that people with disabilities ought to go talk to them there to get help might, perhaps, also double as an information desk.  So I approached it, hoping they would tell me where to go.

    Taking a look at my walking cane, they started to want to help me with ‘accessibility’…  Now, OK, I was walking with a cane, but my issue was not ‘accessibility’, it was trying to find out where it was I wanted to ‘access’!

    After claiming ignorance of any ‘Richard Warman vs. Personal Privacy and Internet Anonymity’ case, they offered me a list of the day’s schedule:  it listed times, court room numbers and the names of the judges who will be doing the judging in those rooms.  Not the names of the cases….

    I did not know the names of the judges!

    It was about then that I began to notice the beautiful architecture of the Courthouse – and just how much it looked like the descriptions of The Castle!

    Any and all descriptions of the case I was looking for drew nothing more than blank stares…until one of the guys picked up on a clue:  did I say this was ‘an appeal’?  Yes?  Well, then I had to go down the hall to the right and sign in at kiosk #4.  That way!

    All right – I guess it is a security measure.  Makes sense.

    I followed the vague wave of the arm and, at the end of the hallway, there truly was a kiosk#4.  It was one side of a counter which sort of intruded into an area of cubicles:  I was on the ‘halway’ side of the counter.  On the ‘cubicle’ side, there was a lady searching through a bankers’ box of papers, another lady typing busily on her keyboard, a distracted looking person (also female, I think) dejectedly rushing around with a bunch of files clutched tightly to her chest…..

    After standing at the counter for about 4 minutes, another person – this one young, male and smiling – appeared from the bowels of the cubicles and actually acknowledged that I was standing there.  After he finished his conversation with someone invisible from my vantage point, he came over to see what I wanted.

    He was very nice.  Why would I think I needed to sign in?  He obviously thought me only partly ‘there’, if I thought I needed to sign in….  But, at least he did know that there was some sort of an appeal being heard that day.  He consulted his paperwork and directed me to courtroom #37.  He was really rather nice.

    Now I regretted that when I wandered around earlier, I was only looking at ‘people’ and looking for crowds instead of paying attention to the numbers of the courtrooms I was passing by.  I had no idea where #37 was!  So, I wandered about some more….

    Finally, I gave up and went back to the ‘information desk’.  They already suspected my ‘disability’ was not limited to the cane bt that I probably also had ‘diminished capability’ – explaining to me that courtroom #37 was on the third floor…

    Makes sense – of course!

    Now my forehead was hurting, too.

    The Courthouse is really beautiful.  Built in the ‘open-middle-to-to-give-an-air-of-grandeur’ style.  Lots of skylights light up the spacious halls.  Very pretty.

    The elevators are all glass – the back side exposed to the brightly lit, multi-story open area.  To access them, one has to sneak into the dark narrow hallway behind the information desk.  So I did – and was on my way to courtroom #37!

    Disappointment!

    I must have bumbled around so long, everyone must already be in the courtroom and these 3-4 people left out front must mean there are no seats left!

    But, no – the courtroom is locked, nobody inside.

    The people in front have never heard of Richard Warman.

    My heart dropped.

    Leave me a simple task, like showing up at the Courthouse to see the wheels of justice in motion – and I can’t even do that!

    There were a lot of people in the room next to courtroom #37 – so I explored.  It was the ‘jury-duty-call-up’ room.

    As I was preparing to leave, I noticed that two of the people who rode up in the elevator with me (and whom I saw walking purposefully towards some goal during a few different points in my adventure – one was even pulling one of them little suitcase thingies on wheels) were walking towards a small group of people…. Hey!  One of these people is Mark Fournier!  And there’s Connie!

    YES!

    I FOUND IT!!!

    I asked Mark and Connie to pose for a photo.

    Did you know taking pictures in the courthouse is forbidden?

    My day in law-law land was off to a great start!

    Posted in freedoms, society, technology. Tags: , , , , , , . 5 Comments »
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