Brian Burke says anonymous bloggers have deliberately set out to ruin his good name.  As his defamation suit against those bloggers goes forward, perhaps it is time to begin a discussion about whether internet anonymity should be restricted, writes J-Source law editor Thomas Rose.

By Thomas Rose

Let’s face it; the reason most people are talking about Brian Burke right now is because he’s a well known powerful member of the hockey world who is defending himself against allegations of sexual impropriety involving a younger, attractive sportscaster who is not his wife.  If the case ever makes it to trial, and most cases involving defamation do not, the outcome will likely hinge on how the defence frames the issue. 

It could be framed as an issue of ordinary individuals exercising their constitutionally protected right to engage in free speech, which the Supreme Court has stated should  be given a broad interpretation (see for example Ford v. Quebec, and Irwin Toy).

It could be framed as a right of fair comment (see the Canadian Bar Association primer on defence of slander) by individuals operating as citizen journalists, although evidence would have to be presented proving that the opinions expressed were based on fact, that is, that Brian Burke did indeed have an affair with sportscaster Hazel Mae. 

It might even be framed under the relatively new defence of responsible communication as provided for by the Supreme Court which now recognizes the legitimate sharing of information in the public interest by journalists, including so-called citizen journalists

A reading of Burke’s filing with the B.C. Supreme Court however, makes clear  that whatever the defence, the statements made by 18 anonymous bloggers were hurtful, damaging, and more importantly, most likely malicious.  In defamation cases, a finding for the plaintiff, in this case Burke often hinges on a question of malice, that is, whether the information put into a public forum was done so with the deliberate intent to ruin a person’s reputation. 

Issue of Anonymity

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While a defence may be important to those bloggers who are the subject of Burke’s defamation suit, whether they claim to be journalists or ordinary citizens, the issue that is of greater and more immediate importance to the internet and everyone who uses it is the question of anonymity.

Anonymity is used sparingly in a democratic society, and rightfully so.  Sometimes as in cases of whistleblowers that make public otherwise privileged documents showing corruption or wilful disregard for public safety, anonymity is granted to protect these individuals from the very real possibility of retribution by employers with deep pockets and top lawyers.  In criminal cases, sometimes the only way to ensure a successful prosecution is to grant fearful witnesses the right to testify anonymously.

Journalists on occasion grant anonymity to their sources, but generally most news organizations discourage the practice. The idea behind this approach is a belief that if someone is willing to have their remarks made public, the public should know who is making those remarks.  

The internet however has taken the opposite view, encouraging or at least making it easy for individuals to mask their true identities behind fictitious names or ‘handles’, whether they are participating in a blog discussion, sending a tweet, or setting up an e-mail account.

The 18 individuals cited in Burke’s defamation suit are all anonymous (one has since self-identified as a Carleton University journalism student ).  Part of what the suit seeks to achieve is to force internet servers to reveal the true identities of “NCOGNITO”, “SIR PSYCHO SEXY”, and the other defendants.  Would these individuals have been as quick to make their allegedly defamatory statements had they been denied the right to communicate in a public forum under a shield of anonymity?

As the suit goes forward perhaps it is time to begin a discussion about the use of anonymity on the internet.  If there are circumstances in which anonymity should be granted, and most likely there are, then let’s identify them. Otherwise, perhaps the starting point for anyone who wishes to use the net should be a willingness to put their name to their words.