Must anonymous blog commenters be identified in defamation proceedings?
Unknown commenters have a privacy interest, Court holds
In Morris v. Johnson, the Superior Court of Justice refused to order the defendants in a defamation action to reveal the identity of anonymous blog commenters.
In 2010, the former mayor of Aurora, Phyllis Morris, sued three local bloggers and several unknown individuals for defamation. The lawsuit alleged that the former mayor was defamed in anonymous comments to blog posts on the Aurora Citizen blog during her re-election campaign. The unknown defendants were alleged to have posted the defamatory comments, while the named defendants were alleged to be moderators of the site with the ability to publish or delete the allegedly defamatory comments.
The former mayor then brought a motion seeking an order requiring the named defendants, their lawyer, and the host of the Aurora Citizen website to provide whatever information they had concerning the identities of the anonymous commenters.
The case raised the question of privacy interests, the promotion of the administration of justice, and the value of freedom of expression in the context of political speech.
The Court’s decision
Justice Carol Brown of the Ontario Superior Court of Justice held that the factors to be considered in balancing the interests raised by the motion were:
- Whether the unknown commenters could have a reasonable expectation of anonymity in the circumstances;
- Whether Morris had established a prima facie case against the unknown commenters;
- Whether Morris had taken reasonable steps to identify the commenters and had been unable to do so; and
- Whether the public interests favouring disclosure outweighed the legitimate interests of freedom of expression and right to privacy.
Justice Brown concluded that the former mayor’s motion should be dismissed. She held that Morris had failed to establish a prima facie case of defamation, since her statement of claim did not set out the specific words from the postings that she alleged were defamatory. The jurisprudence is clear, the judge noted, that in actions of libel and slander, the precise words complained of must be set out with as much particularity as possible in the statement of claim. There was no reason why Morris could not have done so in this case.
The judge rejected Morris’ argument that the defamatory statements were clearly set out in the website postings, holding that “it is not the role of the Court to parse the impugned articles and blogs … to attempt to determine, by divination or divine inspiration, which statements it should assess in determining whether a prima facie case has been established.”
Justice Brown also held that the unknown commenters had a reasonable expectation of privacy in the particular circumstances of this case, since they were free to identify themselves, write under a pseudonym or remain anonymous, and chose to write under pseudonyms. The judge was not convinced that Morris had taken reasonable steps to identify the anonymous defendants, since she had not yet proceeded to the discovery process under the rules of civil procedure. For all of these reasons, the public interest favouring disclosure did not outweigh the legitimate interests in freedom of expression and the right to privacy in this case.
Finally, Justice Brown held that even if Morris had established a prima facie case, there was no basis to justify bringing the motion against the defendants’ counsel, who had no involvement in the alleged defamation and who was at all times acting in a solicitor-client relationship with the named defendants.