This article was last updated on May 20, 2022
Canada: 
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And why is a Liberal politician suggesting you don’t?
Liberal MP Shawn Murphy might be trying to abridge your rights
In Canada, you clearly have a constitutional right to have your internet comments anonymous except in rare situations.
The comments by Liberal MP Shawn Murphy are scandalous. If Conservative Prime Minister Stephen Harper made them, the Liberals would be howling.
The Canadian Charter of Rights and Freedoms grants freedom of expression that the courts have interpreted to mean “anonymous” expression when you chose. Of course, nothing is absolute: if online comments are considered illegal or defamatory, the court may issue an order to identify the IP address of the poster.
The law on this topic has been developing and the current best precedent is the appeal in Warman v. Fournier (Ontario Superior Court May 2010). That ruling has already been used in Nova Scotia in A.B. v Bragg so it appears to be the rule in Ontario and Nova Scotia. It could reasonably be expected to apply in the Maritimes.
That being said, anytime you go to court, there is no way to predict the outcome. Judges have the ability to read the law as they see fit. New law can be made in cases beyond Warman.
The best advice is to be temperate in your comments about private individuals.
The right to free and anonymous expression
In Warman the justices said “As expressed by the Supreme Court, freedom of expression is among the most fundamental of rights possessed by Canadians… The values underlying the right to free expression include individual self-fulfillment, finding the truth through the open exchange of ideas, and the political disclosure fundamental to democracy:”
That’s pretty clear: anonymous and free expression is a right and an important part of democracy. Those who seek to remove the right for convenience, to expose their critics or for public taste are working against the law.
However, anonymity is not absolute. There are rare cases when the court will identify the person who made the anonymous comment. The first two are cases of criminal activity or to protect the security of the state. The police and CSIS can and do get court orders to find out what we are doing online.
The recent controversy is over statements that may be defamatory. “At the same time, the Supreme Court has also recognized that privacy has been accorded constitutional protection…As the Supreme Court ruled in Hill, the good reputation of an individual is intimately connected to his right to privacy, and thus the right to privacy of the plaintiff may be affected by the allegedly libelous postings.” (Warman)
There are two rights involved – the right to free expression and the right to not be slandered in public. It’s like the right to drive a car, but on your side of the road and without hitting a pedestrian or another vehicle. Your rights are there but not in isolation from others’ rights.
Defamation lawsuits and revealing anonymous comments
In defamation lawsuits, the plaintiff has so show prima facie evidence in their court action of defamation.Prima facie means “A legal presumption which means on the face of it or at first sight.” (Duhaime).
In Duhame, the court laid out four tests to before if it would order disclosure:
- “whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
- whether the plaintiff has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
- whether the plaintiff has taken reasonable steps to identify the anonymous party and has been unable to do so; and
- whether the public interest favouring disclosure outweighs the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.” (Canada: Appellate Court Clarifies Limits Of Internet Anonymity: Torys)
Court application required
In all cases, ISPs and websites don’t have to hand over your name or IP address without a court order in civil suits. The person who claims there were defamed has to present a prima facie case of defamation.
In Warman, the order was not granted but sent back to the lower court for consideration. Nova Scotia used Warman in AB v Bragg to grant a request for disclosure when an alleged minor had her picture posted on a fake Facebook page along with libelous comments about her morals. The plaintiff had to first prove that a defamation took place and the court granted the request to disclose the IP address of the person who created the fake Facebook account.
Defamation is expensive
Six lawyers participated in the Warman appeal which didn’t resolve the case. The appellants won but only got partial costs of $10,000. Imagine how much money was spent to get to that point with still no success. Five lawyers appeared at the AB v Bragg hearing. Costs weren’t awarded then yet.
In the cases reviewed, the ISPs did not resist the application. Google, Facebook and other websites won’t generally bother spending money on lawyers to stop an application.
This is not legal advice. You can read a legal commentary of the Warman case at Canada: Appellate Court Clarifies Limits Of Internet Anonymity. There are other legal commentaries that hold Warman means different things for online comments.
The best advice is to be temperate in your comments about private individuals.
By Stephen Pate, NJN Network
Related articles
Warman v. Fournier (Ontario Superior Court May 2010)
A.B. v Bragg Nova Scotia Supreme Court
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I must digg your post so more people are able to see it, really useful, I had a hard time finding the results searching on the web, thanks.
– Thomas
Anonymity: The pro: the freedom to say what you what. The con: the freedom to say what you want. Just what is the indivcomment_IDual going to do with his/her freedom? Something good? Bad? While anonymity ([url]http://tinyurl.com/2a435c5[/url]) allows us to talk about what we would otherwise not bring up due to constraints, real or imaginary, sometimes freedom of speech ([url]http://tinyurl.com/264h2rf[/url]) leads to bad things: yelling “Fire!” in a crowded theatre. I like your analogy: you are free to drive on the road but you still have to follow the rules driving on the right, stopping at traffic lights. All in all, a thorny question. Nevertheless, I certainly find anonymous comments revealing; they say a lot about the indivcomment_IDual. And some of those thoughts I’ve read tell me we have a long way to go before we arrive at an across-the-board population who is smart, educated and tuned in to peace, love and understanding. 🙂