This is a case to watch if you run - or comment on - a website in Canada.
Richard Warman is a Canadian human rights lawyer and activist who aggressively uses Human Rights Tribunals and anti-defamation lawsuits to make life difficult for people who exercise and promote hate speech.
This makes him deeply unpopular with white supremacists, neo-nazis, and libertarians alike, who, as I'm sure you can imagine, have some choice words to write about him on websites and online forums.
His latest target is FreeDominion.ca, which is sort of a Canadian version of the infamous FreeRepublic.com and populated mainly by conservatives, market libertarians, and Western alienationists.
In response to comments posted on FreeDominion that he calls defamatory, Warman sued the website, specifically: "Constance Wilkins-Fournier and Mark Fournier [the website owners] and John Does 1-8 (AKA Kliuxx; SaskBigPicture; Droid1963; conscience; Faramir; Peter O'Donnell' Padraigh; and HR-101)".
Justice Stanley Kershman, the Ontario Superior Court judge hearing the case, has ruled that the site owners must disclose all the personal information they have on the eight pseudonymous users, including their email and IP addresses, on the grounds that the right to privacy does not shield a person from criminal or civil liability; and that in any case, there is "no reasonable expectation of privacy" for generally public information like someone's name and address.
The latter reasoning seems bizarre. The judge quotes Justice Leitch in R v. Wilson (2 February 2008), who wrote, "One's name and address ... is information available to anyone in a public directory and it does not reveal, to use the words of Sopinka J in Plant, "intimate details of the lifestyle and personal choices of decisions of the applicant."
However, when that name and address is connected to comments made when the person assumed they were commenting in privacy, it certainly can reveal the person's "intimate details of the lifestyle and personal choices of decisions".
Finally, it's important to note that the website owners were ordered to disclose the identities of people who are being sued for defamation, not people who have already been sued successfully. It has yet to be determined whether the comments in question are actually defamatory.
What is to stop unscrupulous someone from launching a spurious lawsuit simply to expose the identities of people who left pseudonymous comments on a website?
Now, I Am Not A Lawyer (IANAL), but I am concerned about the low threshold this case sets for infringing on privacy (in Canada, privacy rights are not absolute but are balanced against legal liability and the public interest).
It seems to me that if this decision stands and becomes a precedent, it will produce two outcomes that both run counter to the public interest:
1. It may encourage website operators to make a point of collecting as little information as possible about their users. What this will accomplish, mainly, is to prevent the identification of pseudonymous commenters in cases where the public interest really does trump privacy rights - e.g. in criminal matters rather than civil defamation suits. (It will be interesting to see whether any politician tries to introduce a bill to require website owners to collect this information.)
2. Alternately, it may cast a chill over pseudonymous online discussion, discouraging many authentically valuable and provocative comments as well as comments that may legitimately be regarded as defamatory.
Incidentally, Raise the Hammer has a pretty open commenting policy (so far, aside from accidental data loss, we have only ever deleted comments for being spam) and have never collected much information on site users.
We don't track the IP address when people leave comments, and you don't even need to register with the site to leave a comment - though registered users have more permissions, like the ability to include hyperlinks in comments.
The purpose of requiring a valid email with registration is not to link a username to an identity but merely to prove that the entity trying to register is an actual human rather than a spambot. It is, of course, trivially easy to set up a throwaway email address for this purpose that cannot be easily connected to personal identity.
In addition, once you have successfully set up an account, you can always use the Manage Profile page to change or even remove your email. We do not store previous versions of user profiles in our database.
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