One year ago, I wrote about the Canadian courts’ trend of ordering Internet service providers or website operators to reveal the identity of anonymous bloggers, when it is alleged that the bloggers had defamed the plaintiff. A recent decision by the Ontario Superior Court of Justice, suggests that, when the plaintiff is a politician, the bloggers may continue to remain anonymous.
In Morris v. Johnson , Phyllis Morris, the former mayor of the Town of Aurora, brought a motion for an order against the operators of a blog that Ms. Morris alleged had defamed her while she was the mayor. Ms. Morris wished to have the identity of the anonymous bloggers revealed, so that she could name them as defendants to her defamation action. After reviewing the recent trend in the caselaw, Justice C.J. Brown refused to grant Ms. Morris’ request.
Although she does not specifically say so in her reasons, Justice Brown’s decision suggests that different standards may be applied to cases where the plaintiff is a politician. The Judge’s approach appears to be that, when a person expresses his or her views on a political figure anonymously, that person is validly exercising their constitutional right of freedom of expression and is entitled to remain anonymous. This approach is different than the one taken by the courts to the alleged defamation of lay people. In those cases, the courts have assumed that, because the blogger chose to remain anonymous, he or she may have had ulterior and possibly malicious motives in posting the allegedly defamatory comments.
In my view, a different standard should not be applied to disclosure requests made by politicians. In an open and democratic society, someone who wishes to validly criticize a political figure should be able to do so openly and freely, without fear of repercussion. If he or she defames the politician and chooses to do so anonymously, maybe there was an ulterior motive to the posting – to maliciously cause harm to his or her reputation. Otherwise, why choose to remain anonymous?
Maanit Zemel, Associate
Miller Thomson LLP
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