Warman v. Wilkins-Fournier 2011 ONSC 3023.
Motion brought by the plaintiff requesting an Order compelling the defendants to produce relevant documents in their possession and control relating to the identities of three John Doe defendants. The defendants owned a operated a message board which allowed users to post comments on a variety of topics. The three John Doe defendants were alleged to have posted defamatory comments. The documents demanded were the IP addresses used to create the accounts in question, the e-mail addresses and personal subscriber information and the IP addresses used by the John Doe defendants to make the alleged defamatory comments. There was no issue as to the relevance of the documents or the fact that the data came within the meaning of the term "document".
In deciding whether to order disclosure the Court considered four principles: (1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (2) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (3) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and (4) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered. The Court held that the first three factors must be weighed and balanced in the context of the fourth factor.
The Court found that the plaintiff had taken all reasonable steps to identify the parties by examining their posts and cross-referencing their pseudonyms. There was no reasonable expectation of privacy since the use of pseudonym evidenced an intention to remain anonymous not an expectation. Further, the terms of use for the website made it explicit that members could be prosecuted for defamatory comments. The Court went on to find that the plaintiff had established a prima facie case that the postings were defamatory. Finally, the Court found that due consideration had been paid to the John Doe defendants' right to privacy and freedom of expression. Accordingly, the Court ordered the disclosure of all the relevant documents in the defendants' control.
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