Online Anonymity & John/Jane Doe lawsuits

Online Anonymity & John/Jane Doe lawsuits

Introduction

The Internet has provided the public with an unprecedented ability to communicate and share ideas while keeping their identities private. Anonymity, or the ability to conceal one's identity, has opened the door to much freer communication than would otherwise be the case. Those who fear persecution, ostracism or embarrassment are able to communicate about topics and in ways they would not risk otherwise. However, online anonymity can also be used to mask illegal behaviour.

Governments, corporations and others may seek to reveal the identities of anonymous Internet users in order to prosecute criminal behaviour or to pursue legal actions for defamation, copyright infringement, or other civil wrongs. These "John Doe" actions may or may not be justified. In some cases, they may simply be a tactic to silence legitimate criticism. What are your rights as a "John Doe" defendant? The following FAQs are designed to provide some answers.

F.A.Q.

Contents

What is anonymity?

Most broadly, anonymity is a state in which we can disengage our activity from our identities. Dictionaries generally define it as a state of being unknown through lack of identification, personality or individuality. This definition is based on anonymity's origins as a protection for authors and their writings.

Why is online anonymity important?

Anonymity on the Internet allows people to engage in legitimate and often socially beneficial activities that they wouldn't otherwise engage in for fear of embarrassment, social ostracism, retribution or persecution. For example, communicating under a pseudonym allows individuals to explore their creative side, human rights workers to communicate with each other, employees to "blow the whistle" on harmful corporate practices, members of persecuted minorities (such as gays) to share experiences, and consumers to search for information on sensitive topics such as sexually transmitted diseases, hair loss, or incest without concern about disclosing their identity to others. The ability to browse the Internet anonymously also keeps personal data about what we do out of the hands of intrusive marketers and governments. Justice Wilkins of the Ontario Superior Court noted:

"In keeping with the protocol or etiquette developed in the usage of the internet, some degree of privacy or confidentiality with respect to the identity of the Internet protocol address of the originator of a message has significant safety value and is in keeping with what should be perceived as being good public policy: Irwin Toy Ltd. v. Doe [2000] O.J. No.3318, S.C.J.

More recently, the Ontario Court of Appeal noted the improtance of anonymity to individual growth and to democratic discourse in general:

The appellant is arguing that he had a reasonable expectation that he coudl access and use the Internet anonymously...Privacy is about being left alone by the state and not being liable to be called to account for anything and everything one does, says or thinks. Personal privacy protects an individual’s ability to function on a day-to-day basis within society while enjoying a degree of anonymity that is essential to the individual’s personal growth and the flourishing of an open and democratic society...Surely, if the state could unilaterally, and without restraint, gather information to identify individuals engaged in public activities of interest to the state, individual freedom and with it meaningful participation in the democratic process would be curtailed. It is hardly surprising that constant unchecked state surveillance of those engaged in public activities is a feature of many dystopian novels: R. v. Ward, 2012 ONCA 660

Given the importance of anonymity and the invasive nature of judicial proceedings, courts have recognized the need for protection of anonymity within court processes.

Are you anonymous on the Internet?

Unless you take specific measures to protect your anonymity, you are not anonymous on the internet. This is for two reasons: First, your ISP may keep logs of what sites your Internet Protocol (IP) address visited on the Internet. Your IP address is the identification given to your machine each time you log onto the Internet. This means that your actions on the Internet are not invisible to your ISP. Secondly, the websites you visit may be tracking the IP addresses of their visitors. Although a website owner will not know your particular name through your IP address, it is not very difficult for him to match your IP address to the ISP you are subscribed to.

The only way to be anonymous on the Internet is to use technology such as anonymous web browsing, such as Tor, which allows users to surf the Internet with their IP address hidden. See the links section for examples of anonymous browsing technology.

Is anonymous speech or action a right in Canada?

While historically there has been no general 'right to privacy' or anonymous speech in Canada, courts have recently taken steps to recognize both. In Jones v. Tsige, 2012 ONCA 32, the Ontario Court of Appeal recognized that the growing threat to informational privacy called for the recognition of a right to seclusion in order to ensure the common law develops "in a manner consistent with the changing needs of society":

Privacy has long been recognized as an important underlying and animating value of various traditional causes of action to protect personal and territorial privacy. Charter jurisprudence recognizes privacy as a fundamental value in our law and specifically identifies, as worthy of protection, a right to informational privacy...For over one hundred years, technological change has motivated the legal protection of the individual's right to privacy. In modern times, the pace of technological change has accelerated exponentially...The Internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information.

This generalized concern for priacy has been recognized in several areas of the common law. It should also be noted that s.14.1 of Canada's Copyright Act gives authors the right to remain anonymous in connection with the publication of their works.

In the context of judicial proceedings, courts have specifically recognized the importance of maintaining privacy. In Juman v. Doucette, 2008 SCC 8, the Supreme Court of Canada recognized the invasive nature of the discovery process, and added legal protections to ensure that information collected for to facilitate discovery is not used for any other purpose. More recently, in A.B. v. Bragg Communications Inc., 2012 SCC46, the Supreme Court of Canada recognized the right of a litigant to proceed anonymously where identification would threaten her privacy. In A.B., the litigant was a minor who had been the object of cyberbullying. The Court was especially concerned that the risk of revictimization would discourage the litigant from accessing the judicial system.

The importance of anonymous expression has been recognized by a number of recent decisions as well. In R. v. Ward, 2012 ONCA 660, the Ontario Court of Appeal acknowledged that exposing the anonymous author of online activity raises serious privacy concerns:

...the police were after information that would potentially identify the appellant, not merely as a Bell Sympatico subscriber, but a person who had engaged in certain activities on three specific occasions on the Internet. The information sought by the police would strip the appellant of his Internet anonymity on those three occasions. This characterization of the target of the police action is not in any way altered because the information provided by Bell Sympatico would not conclusively identify the appellant as the person engaged in those activities. The information would connect his account to those activities and go some distance to identifying him as the person involved in those activities. Information that has the very real potential to reveal activities of a personal and private nature is, in my opinion, “information which tends to reveal intimate details of the lifestyle and personal choices of the individual”: Plant, at p. 293. It follows that information that has the potential to reveal activities of that kind may be deserving of constitutional protection.

A decision of the Ontario Court of Justice recognized the "significant intrusion" on an individual's freedom of expression that results from a law preventing anonymous financial contribution to third party support of political causes (Canada (Elections Canada) v. National Citizen's Coalition, [2003] O.J. No. 3420). The Ontario Divisional Court has additionally recognized in Warman v. Fournier, 2012 ONSC 2126, that anonymous online speech can raise free expression concerns.

In the specific context of John/Jane Doe lawsuits, a number of courts have recognized the need to ensure the identification of anonymous individuals does not become "automatic upon the issuance of a Statement of Claim" (Irwin Toy Inc. v. Doe, [2000] O.J. No. 3328, (ON SC)).

Can you sue someone without knowing their name in Canada?

Yes. Such suits are referred to as "John/Jane Doe" lawsuits because they substitute the name "John Doe" or "Jane Doe" for the actual defendant's name. In Internet or email situations, a lawsuit can be launched against an unnamed defendant, leaving identification for a later stage of the proceeding. The identity of a defendant can be discovered if any of the following information is known:
 
  1. IP address
  2. email provider
  3. ISP provider
  4. web site host provider
  5. anonymous remailer provider

The Rules of Procedure of each court set out a process and test for obtaining subscriber information from third parties such as an ISP or website hosts.

What are the typical claims behind a request for subscriber information?

Typical claims underlying John Doe lawsuits are defamation or infringement of intellectual property rights such as trademark or copyright.

What is the process by which someone can get subscriber information from an ISP?

A complainant may first attempt to get the subscriber information by simply asking the ISP for it. However, most ISPs will be reluctant to give out this information without a court order. The complainant will then have to issue a claim against "John Doe" (at which point they become a "plaintiff"), and will then have to ask the court for an order requiring the ISP to disclose the identity of "John Doe".

The complainant will typically not sue the ISP. Instead, they will attempt to get subscriber information from the ISP as a third party.

Each court has its own rules for requesting and obtaining such orders against third parties. (Note that in Canada, these orders are not called "subpoenas" as they are in the United States.) The request will be made via a "motion" (an application to the Court either in person or in writing). Ordinarily, such motions must be served on opposing parties. Again, different rules apply in different courts, but motions must typically be served on those who will be affected by the order - in this case, the ISP and the subscriber. Those who are served must be given an opportunity to be heard before an order is issued. However, because the defendant's identity is unknown, he or she cannot be served. Therefore, in this situation, the ISP will normally be served since the motion is for an order requiring the ISP to disclose the information, and it will be up to the ISP to inform their subscriber of the request.

In some cases, the plaintiff may try to obtain an order for disclosure of subscriber ID without giving the ISP an opportunity to respond. The plaintiff will have to convince the court that the order should be given without informing the ISP in advance. In either case, the subscriber may not be aware of the process until the order is made, although courts have stated that it may sometimes be necessary  to order an ISP to notify anonymous defendants so they can defend their own anonymity (see:Warman v. Fournier, 2010 ONSC 2126 and York University v. Bell Canada Enterprises, [2009] 99 O.R. 3(d) 695 (ONSC).

ISPs are required to comply with court orders for disclosure of subscriber ID.

What is the test for a court order requiring disclosure of subscriber ID?

Courts have developed a test for determining whether to order a third party such as an ISP to disclose the identity of an anonymous defendant in scenarios where a reasonable expectation or privacy exists or freedom of expression concerns are implicated. While variations exist, the test seeks to ensure that the order is necessary, the litigant intends to pursue the claim and that the claim is legally valid.

A plaintiff must establish (see Warman v. Fournier, 2010 ONSC 2126):

  1. whether the unkown 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 unkown 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 interets of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

A prima facie case means that legal and factual grounds exist to suggest the claim in question will be successful. If, for example, allegedly defamatory statements are not capable of harming the reputation of the plaintiff, than no prima facie case can be established and anonymity will be protected. In some scenarios, it may be sufficient to demonstrate a 'good faith' intent to pursue the claim in question.

Does an ISP have the right to disclose the identity of a subscriber without a court order?

Under the Personal Information Protection and Electronic Documents Act (PIPEDA), an ISP is not permitted to disclose a subscriber's personal information without the subscriber's knowledge and consent, except in certain specified circumstances, including: " where required by court order; " where required by law " to certain named "investigative bodies" where the information relates to a suspected breach of law or contract, or " to government organizations who request the information for such purposes as law enforcement, national security, or the administration of law.

However, an ISP may have obtained subscriber consent to such disclosure through its terms of service or contract with the subscriber. Whether or not such consent is meaningful and therefore valid in law will depend on how clear and obvious it is to subscribers.

What right of action does an Internet subscriber have if their personal information is released without a court order?

A subscriber whose identity was disclosed by an ISP without a court order could argue:

  1. Breach of contract if the ISP promised in its term of service or otherwise represented that they would not disclose a subscriber's identity, or

  2. Breach of the Personal Information Protection and Electronic Documents Act, if the subscriber did not consent to such disclosure.

In the former case, the action would be launched in provincial court. In the latter case, the subscriber could complain to the federal Privacy Commissioner under the PIPEDA.

I signed a confidentiality/privacy agreement with my ISP that provides that they will not release my information. Doesn't that protect me?

Not entirely. Such agreements protect you from voluntary disclosures by your ISP, but not from court orders. If an ISP is served with a court order, they are required by law to disclose your personal information in accordance with the order.

What should I do if I receive notice that my ISP has received a motion for a court order to disclose my personal information? What are my rights of action?

First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You should ask your ISP for a copy of the motion if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately and, if necessary, request that it ask the court to delay arguments on the motion in order to give you time to find a lawyer.

How much time would I have to try to fight a motion for a court order?

Not very long. Generally, the time lines for responding to a motion for a court order are very short (less than a week). This means that you should contact a lawyer right away if you want to challenge the motion for disclosure of your identity.

What should I do if I find out that my ISP has received an order to disclose my personal information?

The ISP may be unlikely to fight the court order themselves. If you decide to challenge the court order, you should inform the ISP immediately and request that it delay compliance until you find a lawyer and bring your challenge to the court. In the best of circumstances, however, you will not have more than a few days to bring your challenge.

Can someone ask for my identity even if I am not the Defendant in the case?

Possibly. Under the Ontario Rules of Civil Procedure (rule 30.10), a plaintiff seeking such disclosure would have to prove that revealing your identity is relevant to their case and that it would be unfair to require them to go to trial without knowing your identity.

I don't know whether my ISP keeps track of web sites I've visited or other personal online activity. Could a court order require disclosure of information like that?

Yes. Your ISP may keep logs which show the internet usage activity of subscribers by IP address. Unless you use an ISP which destroys its internet usage records (and most ISPs keep them for legal and security purposes), your ISP will have a log of your activities. Therefore a court order could ask for information about what websites you visited.

In order to preserve your privacy and to prevent your ISP from knowing what websites you visited, you can use an anonymous browsing service such as Anonymizer.com (see links below). These clients work by routing your internet requests through their own servers, so in effect you have a middle man between you and the website you visit. Most anonymous services delete their internet usage logs daily, so that they cannot be asked to produce them for any court procedures.

Links

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This page last updated: November 26, 2012 by Tamir Israel, Staff Lawyer
Researched and compiled by Milana Homsi and Andy Kaplan-Myrth, June 2, 2007