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Canadian Court Sides With Online Anonymity

Soulskill posted more than 2 years ago | from the probably-protecting-his-anti-bruins-rants dept.

Censorship 59

bs0d3 writes "Michael Geist said of a recent Canadian court ruling, 'Anonymous speech can be empowering — whistleblowers depend upon it to safeguard their identity and political participants in some countries face severe repercussions if they speak out publicly — but it also carries the danger of posts that cross the line into defamation without appropriate accountability.' Although I disagree that defamation is an acceptable reason for a court to find someone's identity, the outcome of this trial seems favorable. The court was not asked to determine whether the posts at issue were in fact defamatory. Rather, it simply faced the question of whether it should order the disclosure of personal information about the posters themselves so that someone could proceed with a defamation lawsuit. The court relied on 'Warman v. Fournier,' a previous Canadian defamation case and asked, '(1) Whether there was a reasonable expectation of anonymity; (2) Whether the plaintiff established a prima facie case of wrongdoing by the poster; (3) Whether the plaintiff tried to identify the poster and was unable to do so; and (4) Whether the public interest favoring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered." In this case the order to identify the poster was denied. Since the plaintiff did not identify the specific defamatory words, she failed to establish a prima facie case of defamation. Moreover, the court also ruled that the posters had a reasonable expectation of anonymity and that there were insufficient efforts to try to identify them."

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59 comments

I'm safe then (1)

Anonymous Coward | more than 2 years ago | (#37288756)

at least in Canada eh?

Re:I'm safe then (1)

_0xd0ad (1974778) | more than 2 years ago | (#37288884)

Only if you don't break the law, or the person accusing you is too dumb to prove that John Doe actually broke the law before trying to subpoena John Doe's identity.

Re:I'm safe then (2)

Samantha Wright (1324923) | more than 2 years ago | (#37288972)

Which, it should be noted, is a mite better than the mindset that wrote the Patriot Act would allow, so go ahead and tell your friends to move up here anyway.

Re:I'm safe then (1)

Lieutenant_Dan (583843) | more than 2 years ago | (#37289620)

Re:I'm safe then (1)

anyGould (1295481) | more than 2 years ago | (#37289968)

True, but they haven't managed it yet. (It probably will, since the ruling party is in favor of it). I'm hopeful the courts would strike it down in that case.

Re:I'm safe then (1)

realityimpaired (1668397) | more than 2 years ago | (#37290556)

Considering the precedent that TFA is describing, I doubt that the law would last very long... basically, as soon as somebody challenged the law in court, the parts allowing them to subpoena information without a warrant would be struck down, as this sets the legal precedent of a reasonable expectation of anonymity online, and the requirement that for that anonymity to be broken, they need to prove you actually committed a crime.

Re:I'm safe then (1)

dryeo (100693) | more than 2 years ago | (#37294674)

This is why Harper is planning on appointing a bunch of new judges including supreme court.

Re:I'm safe then (0)

Anonymous Coward | more than 2 years ago | (#37289136)

AC stands for Anonymous Canadian.

Re:I'm safe then (1)

Abstrackt (609015) | more than 2 years ago | (#37289884)

AC stands for Anonymous Canadian.

No, I believe that's EhC.

Re:I'm safe then (0)

Anonymous Coward | more than 2 years ago | (#37291860)

Yeah, but they don't allow delicious cake up there in the Northern Autonomous Territories, and I hear that milk comes in bags, so fuck that.

New Business Opportunity (2, Interesting)

arthurpaliden (939626) | more than 2 years ago | (#37288882)

Safe Blog hosting.

Re:New Business Opportunity (0)

Anonymous Coward | more than 2 years ago | (#37290164)

Pastebin and the likes seem to be the closest thing for most people.. Shame that Freenet has a culture more vile and corrupt than 4chan... avoid both. I'd suggest that we take them as a signpost marking where too much anonymity could also be a problem, in that *nothing* can allow for systematic enforcement of serious criminal matters, even if it were supported by the people, by judge, by regulation, and by constitution. Crime is flaunted.

That said, I quite disagree with the trend towards Real Name integrated authentication everywhere we go, in order to do so much as post a comment on a news piece.. Too much information in all the wrong peoples' hands already.

As much as we need to strike a balance, I don't think we realize how much more personal information "leaks" than we expect.

How? (2)

Reverand Dave (1959652) | more than 2 years ago | (#37288910)

How have the corporations overlooked the Canadian government for so long? How could a ruling that makes this much sense come out of a court of law in this day and age at these prices?

Re:How? (1)

Anonymous Coward | more than 2 years ago | (#37289008)

There are legal limits for political contributions [elections.ca] in Canada. There is a fixed dollar amount per calender year (1,100), plus only individuals can make contributions. These limits are in place to prevent the corrupt legislation purchasing seen in other countries.

It's not that businesses don't have rights in Canada (they do), but Canada holds individuals in a much higher regard.

Re:How? (2)

Attila Dimedici (1036002) | more than 2 years ago | (#37289054)

You know, that explanation would make sense if it was not for the fact that as stricter rules have been imposed on campaign contributions, the influence of corporations has increased.

Re:How? (2)

anyGould (1295481) | more than 2 years ago | (#37289996)

You know, that explanation would make sense if it was not for the fact that as stricter rules have been imposed on campaign contributions, the influence of corporations has increased.

I would say that their influence hasn't increased, but that it's more visible (since they can't hide it in campaign contributions anymore).

Anyone who thinks that the Big Four parties have never been in corporate pockets over the last couple generations wasn't paying attention.

Re:How? (1)

Pseudonym Authority (1591027) | more than 2 years ago | (#37291828)

Except it didn't. Oh wait, you seem to consider that paying for political ads aren't a contribution. I get it, you're twisting words.

Re:How? (1)

Attila Dimedici (1036002) | more than 2 years ago | (#37291972)

Are you saying that the rules for campaign contributions (however you wish to define them) are not stricter today than they were 40 years ago? Or are you saying that corporate influence is no greater today than it was 40 years ago?

Re:How? (1)

dimeglio (456244) | more than 2 years ago | (#37293224)

As a normal citizen, not particularly militant, I believe there will always be influence.

Let me reword a famous adage: Corporations and lobbies see anti-lobby regulations as damage and reroute around them.

Re:How? (1)

Anonymous Coward | more than 2 years ago | (#37289152)

Also likely has to do with the fact that Canadian judges are not elected into office. Therefor they have less need to appease corporations for election campaigns donations.

Re:How? (1)

Reverand Dave (1959652) | more than 2 years ago | (#37290234)

The SCOTUS is not elected either, but those guys are doing their damnedest to hand all of our rights over to corporate america at every turn.

Re:How? (0)

Anonymous Coward | more than 2 years ago | (#37292690)

Which is why I heard certain Republican political leaders, prominently Pat Robertson, repeatedly talk about how right wing presidents were going to nominate right leaning candidates to SCOTUS. I mean "leader" in the general sense, I hope that is apparent. To the best of my knowledge this campaign was successful.

Re:How? (1)

Reverand Dave (1959652) | more than 2 years ago | (#37315890)

It appears you are correct sir. IIRC Pat Robertson was among many others to say this. Turns out that Clinton did his best to nominate pro corporate conservative's as well so it wasn't just the repub's to do this, they are just a bit more honest and upfront about it.

where do these people come from? (1)

sribe (304414) | more than 2 years ago | (#37289026)

Although I disagree that defamation is an acceptable reason for a court to find someone's identity...

Fucking moron.

Re:where do these people come from? (0)

Anonymous Coward | more than 2 years ago | (#37289732)

How so? Defamation isn't exactly mass murder.

Re:where do these people come from? (1)

w_dragon (1802458) | more than 2 years ago | (#37290136)

*Whoosh*

I think...

Re:where do these people come from? (3, Insightful)

_0xd0ad (1974778) | more than 2 years ago | (#37290194)

No, I think GGP's point was that defamation is a crime and you shouldn't expect to be able to freely break the law just because you're online and think you're anonymous. A court can issue a subpoena to find out who you are.

This Canadian ruling simply declined on the basis that the plaintiff didn't actually try to support her claim that she'd been defamed, therefore they weren't going to just willy-nilly rubber stamp a subpoena for her to find out the identity of someone she'd had a disagreement online.

Re:where do these people come from? (1)

cheekyjohnson (1873388) | more than 2 years ago | (#37290890)

A court can issue a subpoena to find out who you are.

And I think that person was just saying he disagrees.

Re:where do these people come from? (1)

_0xd0ad (1974778) | more than 2 years ago | (#37290966)

I'm a bit confused as to who you think is disagreeing with whom (or what) exactly.

Re:where do these people come from? (1)

cheekyjohnson (1873388) | more than 2 years ago | (#37291092)

"Although I disagree that defamation is an acceptable reason for a court to find someone's identity..."

He may know that a court can issue a subpoena to uncover your identity (if, depending on the circumstances, that is even possible), but he may just disagree with them having that ability for something like this.

Re:where do these people come from? (1)

MacTO (1161105) | more than 2 years ago | (#37290822)

Mass murder, no. But defamation can cause significant harm to a person's life. If you accused someone of child molestation, the target's life would be destroyed. Even if they were making a speech in front of billions of people while on live television at the time of the alleged crime, people would still believe that the target was guilty.

Even smaller things like office gossip can have a psychological toll if it is vicious enough and goes on for long enough. So by allowing anonymity you are really sanctioning harassment.

Now we shouldn't be denying anonymity over every tiny thing, especially when it is contrary to the public interest, but there are times where we have to uncloak people because they are using anonymity to hide from the law.

Re:where do these people come from? (1)

cheekyjohnson (1873388) | more than 2 years ago | (#37290918)

But defamation can cause significant harm to a person's life.

Only through a potential loss of potential future "gain." And not even because of the defamation itself, but because of other people. They choose to believe hearsay without confirming the information and then act on it.

people would still believe that the target was guilty.

And I'd say that these people are imbeciles.

Re:where do these people come from? (1)

MacTO (1161105) | more than 2 years ago | (#37291526)

Or through the loss of their current status.

As for other people, well, they do have a tremendous influence upon lives. They have the ability to enrich lives, and they have the ability to destroy them. After all, no man is an island unto himself. That is true no matter how independent they may believe themselves to be. Even a shotgun wielding hermit in a cave is depending upon others to respect his claim or provide him with bullets. Yet the more common reality is this: in order to share in the fruits of society, to obtain things like food and electricity, we need money. Money requires a form of employment. Employment requires us to fit within certain social norms. If we are even rumoured to violate those norms then we are shutout society.

Highly simplified I know, but far less simplistic than the notion of absolute freedoms and the right to do harm unto others through absolute anonymity.

Re:where do these people come from? (1)

cheekyjohnson (1873388) | more than 2 years ago | (#37291620)

Or through the loss of their current status.

Point taken. But, as I said, this really only happens because of other people (and not because of the speech itself).

If we are even rumoured to violate those norms then we are shutout society.

The problem I have is with the "rumored" aspect of it (not that I think people should be punished merely for not conforming to social norms, but it would depend on what they did). Whether or not we're talking about defamation and slander, I really, really believe that people need to verify things like this (and if they can't, I think they should ignore it in most cases). Believing that all hearsay is extremely foolish, in my opinion.

but far less simplistic than the notion of absolute freedoms

I don't advocate absolute freedom. I advocate absolute freedom of speech.

Re:where do these people come from? (1)

tqk (413719) | more than 2 years ago | (#37293498)

Even a shotgun wielding hermit in a cave is depending upon others to respect his claim or provide him with bullets. Yet the more common reality is this: in order to share in the fruits of society, to obtain things like food and electricity, we need money. Money requires a form of employment.

s/Employment/trade/

Employment requires us to fit within certain social norms.

And that's what's wrong with Canada. We preach tolerance of those unlike ourselves from the mountaintops, but only tolerance of the officially sanctioned unlikeness. It's a shallow form of tolerance. Other races, countries of origin, gender or perceived gender, religions, yada, yada; all officially state sanctioned subjects to be venerated. I can wind up in jail for offending any one of those, but those are the only "social norms" that appear to matter.

What about other-handedness? No. Atheism? Only barely. Not much of a believer in democracy (mobocracy)? No, not appreciated at all. I've been almost assaulted for not changing a public computer back to right-handed once I was finished with it (how dare I ?!?). Ditto for preferring FLOSS over Win*. When Toronto was in the World Series and I wasn't cheering for them, friends treated me like a pariah.

Canada's tolerance is a shallow form of it, and nothing to be lauded. I could list a thousand other ways that my differences from what you consider the norm (and what you will tolerate) can make my life hell.

The Japanese had a saying: "The nail that sticks up will be hammered down." We, no-one, should emulate that kind of thinking. You should be learning to tolerate my differences, not expecting me to conform to what you consider acceptable behaviour. You prize diversity? How much, and of what kind?

Anonymity's just more of the same. What right does anyone have in not tolerating it, much less lauding it?

Re:where do these people come from? (0)

Anonymous Coward | more than 2 years ago | (#37291182)

Mass murder, no. But defamation can cause significant harm to a person's life. If you accused someone of child molestation, the target's life would be destroyed. Even if they were making a speech in front of billions of people while on live television at the time of the alleged crime, people would still believe that the target was guilty.

Well, what did you think those big lecterns are for?

Re:where do these people come from? (0)

Anonymous Coward | more than 2 years ago | (#37292092)

Mass murder, no. But defamation can cause significant harm to a person's life. If you accused someone of child molestation, the target's life would be destroyed.

Anonymous speech can't be defamatory. Anonymous has no reputation to back his claim. Only a fool would take anonymous claim seriously. Also the real problem in your example is that mere accusation is a life sentence. This issue has noting to do with anonymity. It has to to with lazy vigilantist that want easy target to express their anger.

Even if they were making a speech in front of billions of people while on live television at the time of the alleged crime, people would still believe that the target was guilty.

Again same problem, peoples are innocent until proven guilty in a court of law. If they want to fix this problem they need to change the way suspects are handled and their identity publicized in the media. Outlawing anonymity is not a solution.

Even smaller things like office gossip can have a psychological toll if it is vicious enough and goes on for long enough. So by allowing anonymity you are really sanctioning harassment.

Again wrong target. Peoples are asshole; This is what need to be corrected, not the level of anonymity allowed.

Re:where do these people come from? (0)

Anonymous Coward | more than 2 years ago | (#37315852)

Anonymous speech can't be defamatory. Anonymous has no reputation to back his claim. Only a fool would take anonymous claim seriously.

Bullshit. Newspapers print plenty of stories from anonymous sources, and there are more than enough fools out there who take anonymous claims seriously.

Again same problem, peoples are innocent until proven guilty in a court of law. If they want to fix this problem they need to change the way suspects are handled and their identity publicized in the media.

You cannot control the media. You cannot control anonymous people who are acting as independent reporters. Once something is public, you can't ensure that the public considers someone innocent until they have been proven guilty.

Peoples are asshole; This is what need to be corrected, not the level of anonymity allowed.

And how do you correct that, without subpoenaing records to determine the identity of the anonymous individual?

Nobody said we shouldn't let people be anonymous. The point is, if you make defamatory claims anonymously, they can attempt to determine your identity so that you can be brought to justice. That's part of "correcting" the fact that you're an asshole who made defamatory claims about someone.

US is different (1)

Smallpond (221300) | more than 2 years ago | (#37289040)

This is how the process ought to work, however in the US the presumption is that any data belongs to the site, not to the posters and they can do what they want with it. Slashdot for example says that the comments belong to the posters, meaning you retain copyright in what you post, but nothing is said about who owns log data such as the IP address where your post came from, or the mapping between your handle and your "real" name (I don't remember showing anyone a birth certificate). That's why US citizens really have no case against the Telcos if they turn over your call records to the Feds. They regard it as their data. It would take a privacy law which we don't have now to force it to be decided by the US Judicial branch.

I am amazed (4, Insightful)

mfh (56) | more than 2 years ago | (#37289042)

With the current Harper government in power, I am totally amazed at this ruling. I applaud the judge for standing up for online anonymity.

Also:
RIP Jack Layton

Re:I am amazed (0)

Mashiki (184564) | more than 2 years ago | (#37289234)

So I guess you're not involved in Canadian politics at all. Rather you take all your talking points from what the CBC tells you. And know not that the liberals and the NDP have been behind the greatest excesses in removing freedoms in Canada.

One of the greatest of course was the charter. Thanks trudeau.

Re:I am amazed (1)

Lieutenant_Dan (583843) | more than 2 years ago | (#37289536)

You're referring to piece about Hate Speech? Yeah, anyone accused of it, loses.

http://en.wikipedia.org/wiki/Hate_speech_laws_in_Canada [wikipedia.org]

Re:I am amazed (1)

ustolemyname (1301665) | more than 2 years ago | (#37293754)

Perhaps you should be more clear. The losing is not in the result of the case, the losing is in having to go to court because somebody disagrees with you.

But the real problem is the Human Rights Tribunal. Accuser is given a lawyer, and the accused is told they don't need one. Go figure.

Re:I am amazed (1)

anyGould (1295481) | more than 2 years ago | (#37290048)

So I guess you're not involved in Canadian politics at all. Rather you take all your talking points from what the CBC tells you. And know not that the liberals and the NDP have been behind the greatest excesses in removing freedoms in Canada.

One of the greatest of course was the charter. Thanks trudeau.

You're saying that the Charter of Rights and Freedoms removed freedoms from Canada? Really?

Also, while you can point fingers at Libs and Cons fairly (I find the difference between the two to be merely preference over the position you wish to be screwed in), the NDP have never formed a majority government at the federal level, so I would wonder how you're attributing any atrocities to them.

Re:I am amazed (0)

Anonymous Coward | more than 2 years ago | (#37292132)

So I guess you're not involved in Canadian politics at all. Rather you take all your talking points from what the CBC tells you. And know not that the liberals and the NDP have been behind the greatest excesses in removing freedoms in Canada.

One of the greatest of course was the charter. Thanks trudeau.

You're saying that the Charter of Rights and Freedoms removed freedoms from Canada? Really?

Also, while you can point fingers at Libs and Cons fairly (I find the difference between the two to be merely preference over the position you wish to be screwed in), the NDP have never formed a majority government at the federal level, so I would wonder how you're attributing any atrocities to them.

<img src="trollface.jpg"/>

Re:I am amazed (1)

ustolemyname (1301665) | more than 2 years ago | (#37293738)

Actually yes, because it denies Canadians a right to free speech. Otherwise it largely just codified the status quo.

Believing something is right and free just because it says "Rights and Freedoms" in the title is the kind of thinking that gets so many republicans elected in the states.

Re:I am amazed (0)

Anonymous Coward | more than 2 years ago | (#37297886)

It denies Canadians a right to free speech? Really? Are you reading the same charter I am? The one that says:

Fundamental freedoms

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

It's called freedom of expression, rather than speech, but that actually makes it a broader right than free speech.

And it most definitely did not just "codify the status quo."
Prior to the Charter, police could search you, your house, car, or business for any or no reason whatsoever, without a warrant, Evidence found in this way was virtually always accepted in court proceedings. In other words, police fishing expeditions were perfectly acceptable.
Once the Charter was enacted, courts quickly put a stop to this, requiring proper warrants and court oversight to any such searches.

If you don't consider that a massive improvement, even by itself, then I don't know what would convince you...

(Posted anonymously because I've already moderated...)

Re:I am amazed (1)

ustolemyname (1301665) | more than 2 years ago | (#37304308)

Don't start reading in the middle, you idiot.

Section 1
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

And they still arrest people without a warrant. My brother was illegally arrested last month over an overdue parking ticket (court told him they had no right to arrest him, and he has no legal right to retaliate)

Re:I am amazed (1)

Mashiki (184564) | more than 2 years ago | (#37304532)

Yes the charter of rights and freedoms removed freedoms. It legally allows the government without the courts to dictate by law which freedoms you can have. The CHRC is probably the best example of this, along with "hate crime" laws.

Re:I am amazed (1)

iolarah (1033958) | more than 2 years ago | (#37291406)

Agreed on all counts, especially the Jack Layton part. I hope whoever takes over for him stands up for anonymity online.

Girl With One Track Mind (2)

roman_mir (125474) | more than 2 years ago | (#37289072)

Girl With One Track Mind [zoemargolis.co.uk] can tell you all about the importance of being able to stay anonymous.

Actually in her case she was doing a pretty good job at staying anonymous while posting her blog entries about her sex life, but then she published a book and some asshole 'journalists' tracked her down and gave out all her personal details.

She lost her job.
She stopped writing her blogs, and let's be honest, the readers lost an interesting character to read about on the interwebs.

Staying anonymous is extremely important for many reasons, so people like facebookâ(TM)s marketing director Randi Zuckerberg, who also happens to be Facebook co-founder and CEO Mark Zuckerbergâ(TM)s sister [zdnet.com] need to shut their yaps and stop spouting this type of nonsense:

I think anonymity on the Internet has to go away⦠People behave a lot better when they have their real names down. ⦠I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.

Re:Girl With One Track Mind (1)

Smallpond (221300) | more than 2 years ago | (#37289192)

Jessica Cutler [wikipedia.org] also comes to mind. She lost her job when she was found out and is defending an ongoing privacy lawsuit.

I for one... (0)

Anonymous Coward | more than 2 years ago | (#37289580)

...welcome our new Anonymous Coward overlords.

I will *not* forget our Baldwins, Canuck bastards! (0)

elrous0 (869638) | more than 2 years ago | (#37289582)

I don't care how free you are, you Canuck bastards, do you have any idea how many b-rated movies have had to settle for Tom Sizemore and other lesser-known actors since the war? Do you even feel GUILTY? Billy had kids, man!

goodnight sweet prince (0)

Anonymous Coward | more than 2 years ago | (#37289922)

Today, Steve Jobs the head of Apple computer and inventor of minimalist design passed away due to complications from his fight with cancer. Jobs, who was last seen in the public eye wearing a very stylish black sock/dress combination; was said to be softly murmuring "But Wait! Theres more" before gently passing away early Friday morning.

Freedom of speech (0)

Anonymous Coward | more than 2 years ago | (#37290628)

Freedom of speech should also involve taking responsibility for what you have to say, so why hide behind anonymity if you have something important to say? If you plan on taking down a company as a whistleblower, have the balls to do so and sign your name!

Signed, Anonymous Coward.

This is not the ruling you're looking for. (1)

blair1q (305137) | more than 2 years ago | (#37290824)

Yes, we all have a right to anonymity.

But it wasn't decided that that right prevents discovery of our identity if we overstep our rights by committing legal offenses against others.

It was only decided that the offended party didn't say what the offense was, and didn't try to identify the offender themselves. If they had, and this case had come down simply to the right of anonymity, the courst would probably have ordered the identification, as anonymity is not a get-out-of-jail-free card.

It's simple (0)

Anonymous Coward | more than 2 years ago | (#37291428)

It said she was a whore.

Posted AC for obvious reasons, eh?

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