Canadian e-mailers can no longer hide behind a cloak of anonymity

[Agent Smiley <skywalker@disinfo.net>]

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On Thu, 14 Sep 2000 15:46:07 -0400 Reg Whitaker <regwhit@yorku.ca> wrote:
Wired News: http://www.wired.com/news/print/0,1294,38734,00.html

Defame Game Serious in Canada 
by Charles Mandel 

3:00 a.m. Sep. 14, 2000 PDT 

EDMONTON, Alberta: Canadian e-mailers can no longer hide behind a cloak
of anonymity if reasonable grounds exist to show they've distributed
defamatory statements over the Internet. 

The change in Canadian law came after a landmark court ruling this week
when an Ontario Superior Court Justice ordered Internet service provider
iPRIMUS Inc. of Toronto to reveal the identity of an anonymous e-mailer. 

The e-mailer is alleged to have defamed George Irwin, the president of
Irwin Toys Ltd., Canada's largest toy manufacturer. 

In August, the e-mailer circulated an email to about 70 employees of the
company criticizing George Irwin. The e-mail also included as an
attachment a number of confidential company files. 

Randy Pepper, a litigation partner with the Toronto firm of Osler,
Hoskin & Harcourt and Irwin's lawyer, filed a statement of claim for
general, punitive and aggravated damages worth CN$1.5 million in August.
However, after the email address turned out to house an alias, Pepper
turned to the courts for recourse. 

Justice John Wilkins' ruling specifies that reasons to compel an ISP to
give up the identity of an anonymous emailer must go beyond a spurious
statement of claim, and that the plaintiff must demonstrate a legitimate
reason for obtaining a court order. 

Robert Belliveau, vice-president of external affairs for iPRIMUS, called
Wilkins' court ruling balanced. "I don't think his judgement is
unreasonable," Belliveau said. 

He wouldn't comment whether the e-mailer's account was still active, but
did say the company would not take any action itself because it might be
construed as making a judgement. "We're not in the business of
exercising such judgement," he said. 

Belliveau dismissed any idea that Canadian ISP customers might be
concerned over the ruling. "I think Internet subscribers generally can
rest assured that their anonymity and their confidential customer data
will remain such until such time as disclosure is warranted." 

Not everyone is reassured, however. David Renardson, a spokesman with
privacyX.com, called the ruling worrisome. Vancouver, British
Columbia-based PrivacyX.com provides an encrypted, anonymous email
service to some 65,000 customers. 

Renardson said he's concerned that e-mail users might have their
identities revealed without any notice from ISPs. "There's a warrant
there, but I feel uncomfortable that there's a kind of unreasonable
search and seizure here that you have no notice of," he said. 

Belliveau confirmed that iPRIMUS did not inform the subscriber of its
decision to comply with the court ruling and hand the individual's name
over to Irwin's lawyers. "It's not in our terms of condition," he said. 

Pepper bristled at the notion that e-mailers should be able to stay
anonymous. "I don't see why someone should be able to hide behind a mask
and then effectively break the law," he said. "How possibly can that be
condoned in a civilized society?" 

The change to the Canadian law brings it more in line with other
jurisdictions. In the United States, probable cause must be determined
before a court order will be issued. As in Canada, ISPs do not need to
inform the client they are passing along information. 

Ari Schwartz, a policy analyst at the Washington-based Center for
Democracy and Technology, said currently in the U.S. the offline
standards for defamation are applied to the Internet. "Right now,
there's very little protection for the individual," he noted. 

In the United Kingdom, following a case involving the ISP Demon
Internet, the law now states that an ISP may be held responsible itself
if it refuses to delete defamatory postings from BBSs. 

"My expectation would be the law in Ontario would follow the law in the
U.K, because our libel and slander traditions are closer to the English
law than (they are) to U.S. law," Pepper said. 

-- 
Reg Whitaker


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