Anonymous Bloggers Beware

The Superior Court of Ontario recently dealt with a case in which a former mayoralty candidate brought a motion to force the operators of a web blog to identify people who had made anonymous postings, in order to sue them for defamation.

It might be assumed at first blush that anyone authoring a post on an anonymous basis can consider himself or herself to be free of any possible liability of defamation. That assumption would be incorrect.

The Plaintiff, Phylis Morris, had been the mayor of the Town of Aurora until 2010.  She ran for re-election at the end of that year and lost. 

The dispute revolved around a website called auroracitizen.ca which the Court described as a forum for political speech by way of web postings.  People choosing to post on that site were free to determine their level of privacy by identifying themselves, signing under a pseudonym, or remaining anonymous. 

Ms. Morris evidently felt that certain posts, placed on the website anonymously during the campaign, were defamatory.  Since she had no way of identifying the authors of those posts, she brought a motion against several individuals said to be in control of the website for an Order that they identify those authors. In the result, the motion was dismissed for a variety of reasons, principally involving the fact that Ms. Morris failed to identify the specific words complained of as being defamatory, in her supporting Affidavit. 

However, the analysis undertaken by the judge described the principles that would have been applied had Ms. Morris’ Affidavit not been deficient.

It might be assumed at first blush that anyone authoring a post on an anonymous basis can consider himself or herself to be free of any possible liability for defamation.  That assumption would be incorrect.  In cases of this nature, the Court will balance the competing interests and may well conclude that an action is available to an aggrieved Plaintiff.  If so, information as to the identity of the authors of defamatory posts would have to be produced.

On the one hand, the underlying value of the freedom of expression in the context of political speech must be considered.  Freedom of expression has always been recognized as a fundamental Canadian right. 

On the other hand, as the Court in a 2010 case had observed:

“ … there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity.”

The Court pointed out that freedom of expression does not provide a license to ruin reputations whether they are in public office or not.  While people entering into public life have to expect criticism, their participation in public life does not amount to open season on reputation. 

As a result, in cases of this nature, the Court will balance one’s right to protect his or her reputation against the recognized concern for personal privacy and the fundamental right of freedom of expression.  Much will depend on the statements made and their context, including the context in which the publication took place.

Therefore, there may well be circumstances in which a person with a reasonable expectation of anonymity may find himself or herself both identified and sued for defamation.

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