Appellate Court Clarifies Limits Of Internet Anonymity

Originally published in Internet and E-Commerce Law in Canada, vol. 11, no. 3, July 2010

The recent Ontario Divisional Court decision in Warman v. Fournier,1 set a significant Internet law precedent by ruling that the identity of an anonymous Internet user will not be automatically disclosed to a plaintiff in civil litigation, even though the information is in the possession of a named defendant. The decision confirmed that identity information should only be disclosed when the plaintiff's claim is legitimate and after a consideration of the public interests at stake.

The Warman case is now the leading authority in Ontario for the proposition that although an Internet user's anonymity should not be protected absolutely, the mere commencement of a lawsuit will not give rise to an automatic entitlement to identity information. Instead, the courts must balance the right of a plaintiff to seek redress against the public interests served by anonymous Internet activity.

BACKDROP TO WARMAN

The jurisprudence before Warman arose in a number of different legal contexts:

in the criminal context, particularly search and seizure cases; in proceedings for Norwich orders, seeking third-party discovery; and in cases following Irwin Toy Ltd. v. Joe Doe,2 a relatively early case on disclosure of the identity of anonymous Internet users that is now usually referenced in the Norwich cases. These lines of cases have one thing in common: in every one of them, the court has required a screening process. Disclosure is not automatic. Each context was considered in Warman.

CRIMINAL CONTEXT

The issue of whether to order disclosure of information identifying an Internet user first arose in the context of criminal investigations involving search and seizure. Since s. 8 of the Canadian Charter of Rights and Freedoms applies to informational privacy, the courts have developed a test to determine whether, in any particular case, there is a "reasonable expectation of privacy."3 The test requires the court to consider not only the accused's subjective expectation of privacy but also a number of other factors. Ultimately, the court's decision is based on the "context of the disclosure and the totality of the circumstances."4

The cases involving the identity of an Internet user, which have been fairly frequent in the criminal context, have had different outcomes, depending on the circumstances. The most recent case discussing this issue in detail held that "there is a reasonable expectation of privacy" in a party's subscriber information, which links his or her identity to Internet usage.5 The Court of Justice found that a name and address can be a "critical link between the [Internet user] and very private information." None of that information is meaningful until it is associated with the person, by name and contact information. And when the person's identity is known, his or her privacy is invaded.6 However, this has not always been the view of the judges deciding s. 8 cases.7

The common thread in the criminal cases is the requirement that a court consider all the circumstances when deciding whether to order disclosure. Disclosure is not automatic.

NORWICH ORDERS

In civil litigation, an equitable remedy of "preaction discovery" has developed to permit a plaintiff to discover the identity of a proposed defendant. It was developed in an early U.K. case, Norwich Pharmacal Co. v. Comrs. of Customs and Excise8 — hence a "Norwich order." A plaintiff must meet a multipart test to obtain a Norwich order. There is no automatic entitlement.

Norwich orders are now routinely sought to discover the identity of anonymous Internet users. A leading decision is...