Tuesday, July 26, 2011

Good on you judge!

Online critics of former Aurora mayor can remain anonymous: judge

Phyllis Morris in 2006 when she was councillor and deputy mayor of Aurora. (National Post files)

In a decision with broader implications for online privacy, a judge has ruled not to force the identification of anonymous bloggers who wrote critical web posts about former Aurora mayor Phyllis Morris.

The Ontario Superior Court ruling, which Ms. Morris intends to appeal, is a major blow to her $6-million defamation action, which targets three individuals who authored anonymous posts on the Aurora Citizen website, along with the site’s moderators.

In her decision, Justice Carole Brown weighed Ms. Morris’s allegations against the fundamental right to freedom of speech and found the former mayor’s case wanting.

“The public interest favouring disclosure [of the bloggers’ names] clearly does not outweigh the legitimate interests in freedom of expression and the right to privacy of the persons sought to be identified,” Judge Brown wrote, noting the three anonymous defendants, who chose to make comments on the site using pseudonyms, had “a reasonable expectation of anonymity.”

In addition, the judge noted, Ms. Morris failed to set forth the specific words alleged to be defamatory, including only snippets and titles in her statement of claim.

“It is not the role of the court to parse the impugned articles and blogs before it to attempt to determine, by divination or divine inspiration, which statements it should assess in determining whether a prima facie case has been established,” Judge Brown wrote in her decision, handed down last week.

Ms. Morris says she has reviewed the written decision with her legal team and will launch an appeal, effectively placing the case on hold in the interim.

“While we respect the decision of the court, we also respectfully disagree with the finding that we failed to make out a prima facie case of defamation,” Ms. Morris said, noting the anonymous comments “went far beyond acceptable political commentary.”

Along with the three anonymous bloggers, Ms. Morris’s lawsuit names Aurora Citizen moderators William Hogg and Elizabeth Bishenden, frequent contributor Richard Johnson and web host wordpress.com. Mr. Hogg, Ms. Bishenden and Mr. Johnson are not the authors of the blog comments in question.

Ms. Morris, who lost the mayoralty to Geoff Dawe in a landslide vote last year, argues critical comments on the site made her the subject of “ridicule, hatred and contempt.”

The defendants, meanwhile, have dismissed the lawsuit as an attempt to quash their political participation in matters of public importance, and hailed the judge’s latest ruling as a vindication.

“We remain confident that irrespective of any potential appeal, this ruling will be ultimately allowed to stand,” Mr. Johnson said Monday.

The Canadian Civil Liberties Association, which intervened in Ms. Morris’s motion by arguing the anonymous bloggers’ identities should be protected, also lauded the outcome.

"This is political speech… the kind of speech that we think should be given broad protection in society,” said Cara Zwibel, director of the CCLA’s fundamental freedoms program. Judge Brown’s ruling, she said, “sets what we think is an appropriately high bar for plaintiffs in defamation actions before they can get this kind of information.”



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