In the latest chapter in a $6 million defamation suit by a former mayor, an Ontario court has refused to order the disclosure of the identities of three individuals who used pseudonyms to post to an online forum.
The case should provide some comfort to those who post commentary anonymously, while serving as a cautionary tale to plaintiffs seeking to get behind the pseudonyms of their critics and detractors.
Phyllis Morris is the former mayor of the Town of Aurora, Ontario. During her unsuccessful re-election campaign in 2010, the individuals in question allegedly made defamatory postings to the Aurora Citizen, a website featuring a blog and user forum centred on issues of interest to citizens of Aurora. Ms. Morris sued the anonymous posters, their counsel and a number of alleged moderators, writers and hosts of the site. She also brought a motion to reveal the identities of the anonymous defendants.
The case focused on how to best balance the a plaintiff’s need to obtain the identities of the anonymous defendants (in order to proceed with a defamation suit) and the public interest in promoting the administration of justice, weighed against the competing rights of privacy of the defendants and the underlying values of freedom of expression and political speech.
In cases of alleged defamation by anonymous parties, the courts in Ontario have taken the approach that, where privacy interests are involved, disclosure is not automatic, even if the plaintiff establishes relevance and the absence of any recognized form of legal privilege; rather, plaintiffs will be required to establish the elements of defamation on a prima facie basis before courts will consider ordering the production of identity information for the anonymous parties.
In her judgement in the present case, Justice Brown of the Ontario Superior Court of Justice affirmed that the appropriate test to be used in such cases is the one set out in Warman v. Fournier, an earlier case involving alleged defamation by anonymous Internet users. Adapting the principles set out in the seminal U.K. case on pre-action discovery, Norwich Pharmacal Co. v. Comrs. of Customs and Excise,  A.C. 133 (H.L.), Warman set out the following factors to be considered in deciding to order disclosure of the identities of anonymous Internet users:
- Whether the anonymous user could have a reasonable expectation of anonymity in the circumstances
- Whether the plaintiff has established a prima facie case against the anonymous party and is acting in good faith
- Whether the plaintiff has taken reasonable steps to identify the anonymous party, but has been unsuccessful in doing so
- Whether the public interest favouring disclosure outweighs the interests of freedom of expression and the right to privacy
In the Morris case, the court found that the plaintiff had not made out a sufficient case to justify the reasonable expectation of anonymity of the defendants; in fact, the plaintiff had not pleaded the specific words that comprised the alleged defamation, nor had she adduced any evidence whatsoever in support of her contentions that the statements in question harmed her reputation, caused her emotional distress of caused her to fear for her safety. The court also found that she had not taken reasonable steps to identity the anonymous defendants.
The case is a further demonstration that courts will be reluctant to unmask anonymous posters in defamation cases, based on assumed defamation, or a simple identification of allegedly defamatory statements. Plaintiffs must provide sufficient particulars to allow the court, in determining whether a prima facie case of defamation exists, to conduct a contextual analysis of each defamatory statement. The court also hinted that the bar for revealing the identities of anonymous commentators may be even higher in political matters, such as a “hard-fought” mayoral campaign.
Apparently, Ms. Morris has indicated that she intends to appeal Justice Brown’s ruling.