When the Ontario Superior Court dismissed former Aurora, Ont., mayor Phyllis Morris’s suit to identify anonymous commenters on a local political blog, it not only derailed the ex-mayor’s attempt to get $6 million in defamation damages out of the unidentified writers, but gave legal support to the idea that citizens should be able to express opinions anonymously.
 

When the Ontario Superior Court dismissed former Aurora, Ont., mayor Phyllis Morris’s suit to identify anonymous commenters on a local political blog, it not only derailed the ex-mayor’s attempt to get $6 million in defamation damages out of the unidentified writers, but gave legal support to the idea that citizens should be able to express opinions anonymously.

As the Toronto Star reported, the court concluded that “the public interest favouring disclosure (of the commenters’ names) clearly does not outweigh the legitimate interests in freedom of expression and the right to privacy of the persons sought to be identified.”

The case concerned comments in an online chat forum operated by the Aurora Citizen blog.

The decision sparked a fair amount of (not necessarily anonymous) comment.

Writing in the Ottawa Citizen, Michael Geist, Canada Research Chair in Internet and e-commerce Law at the University of Ottawa law faculty, said the court struck the right balance. Morris failed to establish a prima facie case of defamation because she did not identify the specific words considered to be defamatory, he wrote, the posters had a reasonable expectation of anonymity and the plaintiff did not make sufficient efforts to identify them before pursuing a court ruling.

Geist said the case “also provides a reminder of the value of court oversight before ordering the disclosure of personal information.” But he added a warning. “This may be in jeopardy since the government is currently contemplating lawful access legislation that require such disclosures without court oversight, tilting the balance away from privacy and creating a potential chill for those speaking out online.”

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In an editorial, the National Post argued that “the expectation of privacy related to anonymous writings is not a licence to flout the law,” but added that because Morris did not identify the comments considered defamatory, she “was demanding to gather sensitive and private information without providing the specifics of any alleged wrongdoing.”

Post columnist Jesse Kline went somewhat farther, using the ruling as the news peg for a column critical of Canada’s human rights commissions and the Charter of Rights provision allowing exceptions “demonstrably justified in a free and democratic society.”

“In a country where human rights commissions are allowed to run roughshod over freedom of expression and public figures have the ability to sue ordinary citizens for defamation,” Kline wrote, “it is no wonder that Canadians would be wary of divulging their identities online.”

In The Globe and Mail, Ivor Tossell argued the case for anonymous comment, noting that even in a society where dissidents are not routinely persecuted, some people  – such as town staff when local politics are involved – cannot voice opinions any way but anonymously. “We are still wedded to the idea of democracy as a contest of ideas, forthrightly stated by individuals bold enough to step up and stand behind their statements,” he wrote. “But it's worth remembering that for every anonymous weasel in a political forum, there's a considerate citizen with an opinion that needs shelter to be voiced. Shadowed figures have a place in our public lives: It's a protection worth protecting.”

Those shadowed voices have traditionally had a place in journalism too, as the anonymous sources on whom many stories – including the Watergate and sponsorship scandals – have depended. But following the furore over phone hacking at the News of the World, Globe columnist Neil Reynolds recently wrote that there is no longer a place for anonymous sources. “The abuses that tripped Rupert Murdoch are very old abuses,” he argued. “One is the risk of factual error inherent in the use of anonymous sources. Another is the risk of insidious corruption when journalists walk the corridors of power as collegial associates of prime ministers and presidents.”

Reynolds’ point appears to be that when editors accept stories that rely on anonymous sources, without requiring reporters to identify where they got their information, they open the door to illegal and unethical practices like phone hacking. In an editorial in the Waterloo Region Record, editor Lynn Haddrall noted that the paper requires “full disclosure from our journalists, especially when they are dealing with sensitive or controversial subject matter.” A reasonable precaution, surely, and maybe a workable middle ground between the who-cares-how-you-got-the-story culture at the News of the World and a blanket prohibition against using sources without identifying them.

 

Grant Buckler is a retired freelance journalist and a volunteer with Canadian Journalists for Free Expression and lives in Kingston, Ont.