The Coast and Justice Robertson were both wrong

An Ontario Divisional Court ruling has thrown the The Coast’s craven cave-in to an HRM Fire Service lawsuit into sharp relief—along with an imprudent ruling by Nova Scotia Supreme Court Justice Heather Robertson.

The Chief and Deputy Chief of the fire service asked Robertson to order The Coast to release identifying information about individuals who posted anonymous comments about alleged racism in the fire service on the newspaper’s website. The officers said the comments, since removed, defamed them, and they needed the identities of the authors to pursue a suit for defamation.

Having lured readers into posting anonymously, the Coast tossed them to the judicial wolves. The paper deleted the comments and published a grovelling apology, effectively inoculating itself from any exposure to a libel suit. It also declined to contest the request for a disclosure order, which Robertson granted to sanctimonious applause from several practitioners of the fourth estate, many of whom allow anonymous (and often scurrilous) posting on their own websites.

Unlike Robertson, the Ontario Court had the benefit of hearing both sides of this argument, and found, as Paul Schneidereit reports in yesterday’s Chronicle-Herald:

[T]hat the value of freedom of expression is so fundamental that defamation lawsuits against anonymous Net commenters are not entitled to automatically obtain information that could lead to their identities being unmasked…

[The decision] raises fresh questions about how quickly a Nova Scotia Supreme Court justice last month ordered the Coast and Google to cough up information that may identify several individuals who anonymously posted, and emailed, allegedly defamatory messages about senior members of the Halifax Fire Department in 2009.

The Ontario Court did not establish an unlimited right to post comments anonymously. Rather, it found that the posters’ Charter rights of free expression and privacy must be balanced against the the public interest in promoting the administration of justice.

Before ordering disclosure, the court ruled, a judge must consider whether the anonymous posters had a reasonable expectation of anonymity; whether the would-be plaintiff has established a prima facie case of libel; whether the plaintiff is acting in good faith; and whether the public interests favouring disclosure outweigh the posters’ legitimate interests of freedom of expression and right to privacy.

The good faith issue could be significant in the Nova Scotia case if it turns out the officers’ real reason for seeking disclosure was not to facilitate a libel suit but to identify members of the fire service who could be disciplined or fired.

Contrarian has not read the comments, and has no opinion as to their veracity or fairness. But let’s assume, hypothetically, that they included accusations of racism. Racism is a critical public issue in Nova Scotia. It is also an issue fraught with emotion, and anyone accused of racism is likely to feel defamed. In such a circumstance, courts should give the broadest possible scope to free debate on an issue of vital public importance, and not restrict that debate out of concern for the tender feelings of public officials who may be swept up in it.

Robertson considered none of these factors. Instead, she assumed the posters had libelled the officers, and declared, peremptorily, that “the court does not condone the conduct of anonymous internet users who make defamatory comments and they like other people have to be accountable for their actions.”

Pretty shoddy all around.