Motion for Leave to Appeal
Ontario Superior Court
161 Elgin St.
August 25, 2011
In 2007 Richard Warman launched the opening salvo of his maximum disruption campaign against Free Dominion by issuing his first-of-four lawsuits against Connie and me. This lawsuit named us and eight anonymous Free Dominion posters who Richard Warman claimed defamed him in the Free Dominion forum. We chose to defend.
This case immediately became about much more than whether or not Richard Warman was actually defamed though the eventual decision on that matter should be of interest to any Canadian posting comments in political forums and in comment sections of blogs.
A second layer of legal complexity was created when Warman named only anonymous online posters in his complaint against us. This brought up issues of the credibility of anonymous comments and of the legal liabilities of forum operators and of bloggers who allow anonymous comments to be posted on their blogs.
A third layer was added when Warman tried to force us to reveal confidential information about the Free Dominion posters he complained against. This opened up issues of internet privacy and the significance of “outing” someone’s internet alias, as well as issues of freedom of speech and political expression. It also pointed to an area of law that had not kept up with internet reality.
On July 22, 2009 Richard Warman made a motion asking the Ontario Superior Court to compel us to reveal confidential information about Free Dominion members so he could identify and sue them. Although the limited information we kept on Free Dominion members at that time would be useless identifying Warman’s potential targets we chose to fight the motion anyway because we understood the damage that turning over this information, under those circumstances, would do to the law and to our freedom.
Richard Warman was able to do this due to a weakness in the Ontario Rules of Civil Procedure that govern this area of law. Under these Rules third parties, such as internet service providers or website operators, cannot be forced to reveal confidential information in defamation cases where a prima facie case had not been made. Warman got around this by naming Connie and me as defendants in his complaint. Once we became co-defendants the John Does lost that protection and the law said we had to disclose. Our position was that the law was wrong, in part, because it could be so easily abused, anyone could get confidential information about someone using an internet alias by simply paying the $150.00 fee needed to file a defamation suit, a suit that could later be dropped without penalty. We argued that at least a prima facie case should be made before someone would be stripped of their anonymity. Justice Stanley Kershman disagreed and in March, 2009 brought down an awful politically-based ruling against us. We couldn’t leave that dangerous door open so we applied for leave to appeal and were granted leave to do so by the court.
When our appeal was heard by Divisional Court we had interveners on board. The Canadian Civil Liberties Association and the Canadian Internet Policy and Public Interest Clinic, while having no interest in the merits of the underlying case, understood the public and freedom issues at stake and they both presented stellar arguments supporting our disclosure positions. The Divisional Court ruled in our favour on the prima facie issue and then gave us more than we dared to dream. They devised a four-part test that must be passed before disclosure can be ordered.
The new four part test reads:
(1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
(2) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
(3) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
(4) whether the public interests favouring 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.
While the Divisional Court ruling strengthened the law and protected our freedom it did not include a decision on whether we would have to disclose. The court gave Warman the opportunity to go back to the lower court and try to get his case past the the new test. He chose to exercise that option. The court also ordered Richard Warman to pay us $10,000 for our costs.
December, 2010 we were back in Superior Court re-arguing the original disclosure motion. Justice Blishen seemed to have no knowledge of internet discussion forums and no interest in learning about them or dealing with the new challenges they present to law. It took six months for Justice Blishen to issue a Kershmanesue decision based on politics rather than on law. She ruled that because prima facie had been met (a point we dispute) the other three parts of the test could be ignored. This set up the absurd situation where the Divisional Court test could never be applied. If prima facie was not met the rest of the test would be moot and if prima facie was met the rest of the test would be unnecessary. The Blishen decision negated the Divisional Court test so we are now forced to appeal again to the higher court.
Our next step is to apply to the court for leave to appeal the Blishen decision. The Canadian Civil Liberties Association has submitted an affidavit supporting our application for leave because they again understand the significance of this case. The upcoming hearing on Thursday was originally scheduled for July 28, 2011 but after a full day of waiting in the Ottawa court house we were told there wasn’t time to hear our motion so we rescheduled.
The last time we were in court several people came out to the court house to follow our case and to show their support for the principles we are trying to protect. The Libertarian Party and Language Fairness were represented along with several individuals concerned about our freedoms. The author of the blog Xannithipa’s Chamberpost attended (she follows our cases closely and writes excellent reports on the twists and turns of the politically motivated cases against us).
The battle for freedom will never end but we are slowly winning in Richard Warman’s arena. Please come out tomorrow and show your support for Canadian internet freedom.
"If it takes force to impose your ideas on your fellow man, there is something wrong with your ideas. If you are willing to use force to impose your ideas on your fellow man, there is something wrong with you." - Mark Fournier