Canada: Appellate Court Clarifies Limits Of Internet Anonymity

Originally published in Internet and E-Commerce Law in Canada, vol. 11, no. 3, July 2010

The recent Ontario Divisional Court decision in Warman v. Fournier,1 set a significant Internet law precedent by ruling that the identity of an anonymous Internet user will not be automatically disclosed to a plaintiff in civil litigation, even though the information is in the possession of a named defendant. The decision confirmed that identity information should only be disclosed when the plaintiff's claim is legitimate and after a consideration of the public interests at stake.

The Warman case is now the leading authority in Ontario for the proposition that although an Internet user's anonymity should not be protected absolutely, the mere commencement of a lawsuit will not give rise to an automatic entitlement to identity information. Instead, the courts must balance the right of a plaintiff to seek redress against the public interests served by anonymous Internet activity.


The jurisprudence before Warman arose in a number of different legal contexts:

  • in the criminal context, particularly search and seizure cases;
  • in proceedings for Norwich orders, seeking third-party discovery; and
  • in cases following Irwin Toy Ltd. v. Joe Doe,2 a relatively early case on disclosure of the identity of anonymous Internet users that is now usually referenced in the Norwich cases.

These lines of cases have one thing in common: in every one of them, the court has required a screening process. Disclosure is not automatic. Each context was considered in Warman.


The issue of whether to order disclosure of information identifying an Internet user first arose in the context of criminal investigations involving search and seizure. Since s. 8 of the Canadian Charter of Rights and Freedoms applies to informational privacy, the courts have developed a test to determine whether, in any particular case, there is a "reasonable expectation of privacy."3 The test requires the court to consider not only the accused's subjective expectation of privacy but also a number of other factors. Ultimately, the court's decision is based on the "context of the disclosure and the totality of the circumstances."4

The cases involving the identity of an Internet user, which have been fairly frequent in the criminal context, have had different outcomes, depending on the circumstances. The most recent case discussing this issue in detail held that "there is a reasonable expectation of privacy" in a party's subscriber information, which links his or her identity to Internet usage.5 The Court of Justice found that a name and address can be a "critical link between the [Internet user] and very private information." None of that information is meaningful until it is associated with the person, by name and contact information. And when the person's identity is known, his or her privacy is invaded.6 However, this has not always been the view of the judges deciding s. 8 cases.7

The common thread in the criminal cases is the requirement that a court consider all the circumstances when deciding whether to order disclosure. Disclosure is not automatic.


In civil litigation, an equitable remedy of "preaction discovery" has developed to permit a plaintiff to discover the identity of a proposed defendant. It was developed in an early U.K. case, Norwich Pharmacal Co. v. Comrs. of Customs and Excise8 — hence a "Norwich order." A plaintiff must meet a multipart test to obtain a Norwich order. There is no automatic entitlement.

Norwich orders are now routinely sought to discover the identity of anonymous Internet users. A leading decision is that of the Federal Court of Appeal in BMG v. John Doe, a case about music sharing on the Internet. In BMG, music companies wished to sue Internet users for copyright infringement. The music companies started an action against a number of "John Does" and then brought third-party motions against Internet service providers seeking disclosure of the customer information that would potentially identify the John Does. The Court followed the Norwich line of cases, holding that the following factors govern the determination whether to grant the order:

  1. The applicant must establish a bona fide claim against the unknown alleged wrongdoer.
  2. The third party from whom discovery is sought must, in some way, be involved in the matter under dispute.
  3. The third party must be the only practical source of the information available to the applicant.
  4. The third party must be reasonably compensated for expenses and legal costs arising out of compliance with the discovery order.
  5. The public interests in favour of disclosure must outweigh the legitimate privacy concerns.9

In reaching its decision, the Federal Court of Appeal dealt extensively with the Internet users' privacy interests, stating that they are "significant and they must be protected."10 Ultimately, the Court upheld the decision of the motions judge that the evidence put forward in support of the motion was insufficient to justify making the order.

The Ontario Court of Appeal recently considered the test for Norwich orders outside the Internet context and observed that a Norwich order is intended to be an exceptional, though flexible, equitable remedy. There is no automatic disclosure.11


A similar approach was taken by the Ontario Superior Court of Justice in the relatively early case of Irwin Toy,12 in which the plaintiff wished to sue the anonymous author of certain emails for libel. The Court concluded that the disclosure of the identity and address of the defendant should not be automatic. It held that the moving party must first demonstrate in affidavit material that it has a prima facie case against "John Doe" in respect of the allegations made in the statement of claim. Since the plaintiff had shown a prima facie case and had been unable to obtain the information by other means, the Court concluded that the information should be disclosed.13

Both Irwin Toy and BMG are now routinely referenced in motions for third-party disclosure of identity information about Internet users. The recent decision in York University v. Bell Canada Enterprises,14 another libel claim, is a helpful example that includes an extensive review of the law.


Warman is a libel action against the operators of an Internet message board and several anonymous Internet users who allegedly posted libelous comments about the plaintiff on the message board. Although the plaintiff knew the identities of the message board operators and sued them by name, he did not know the identities of the posters. He therefore sued them under the pseudonyms they used on the message board.

At the document-production stage, the defendant message board operators refused to disclose the documents that might have identified the anonymous Internet posters, citing privacy and other concerns for the website users. The plaintiff then moved for an order compelling the production of those documents. The plaintiff relied on the Rules of Civil Procedure, requiring that all relevant documents be produced unless privileged. The named defendants admitted the relevance of the documents and that there was no recognized privilege. The plaintiff therefore sought the identity information on the basis that it was already in the hands of a named party with seemingly mandatory discovery obligations. The plaintiff argued that disclosure should be automatic. The motion judge agreed, but was ultimately overturned by the Divisional Court.


The Divisional Court began by considering the Charter rights and values engaged by the request for disclosure. The Court found that the case engaged both freedom of expression, guaranteed by s. 2(b) of the Charter, and privacy interests also protected by the Charter.


The Divisional Court observed that "freedom of expression is among the most fundamental of rights possessed by Canadians" and that an individual's right to remain anonymous can be a factor in exercising that right.15 It recognized that a relationship existed between freedom of expression and anonymity, referencing the Ontario Court of Justice in Canada (Elections Canada) v. National Citizen's Coalition. The Elections Canada case was a constitutional challenge of the reporting requirements of certain parts of the Canada Elections Act.16 In that case, the Court held that the removal of individuals' right to remain anonymous constituted an unjustified breach of the Charter right to freedom of expression.17

The Elections Canada decision is consistent with the well-established law in the United States that has repeatedly held that a person's decision to remain anonymous is an aspect of the freedom of speech protected by the First Amendment. This principle was developed before the Internet and recognizes that people from time to time throughout history have been able to criticize oppressive practices and laws "either anonymously or not at all."18 Protection is not, however, absolute.


Quite apart from the role of anonymity in fostering freedom of expression, the Divisional Court also recognized that privacy interests must be considered. It observed that the Supreme Court has recognized that privacy is a value deserving constitutional protection. 19 Further, the Divisional Court observed that informational privacy includes protecting the "biographical core of personal information" and that courts have developed various tests to determine whether in given circumstances there exists a reasonable expectation of privacy.20

The Divisonal Court recognized that privacy interests arose in favour of both the plaintiff and the John Doe defendants:

As the Supreme Court ruled in Hill, the good reputation of an individual is intimately connected to his right to privacy, and thus the right to privacy of the plaintiff may be affected by the allegedly libelous posts. At the same time, the John Doe defendants who made the allegedly libelous postings arguably had a reasonable expectation of privacy, having expressly elected to remain anonymous when they did so.21

The Divisional Court acknowledged that these conflicting privacy interests were engaged by the Warman claim.


Having decided that the Warman case did engage Charter rights and values, the Divisional Court then had to address the mandatory nature of the disclosure obligations under the Rules of Civil Procedure. The Court held that, since the Rules have the force of a statute, they must be interpreted in a manner consistent with the Charter and a court has inherent jurisdiction to control the production and discovery process. The Divisional Court followed D.P. v. Wagg, another production case in which the Court crafted a screening process to be used before producing Crown briefs in civil litigation, despite the mandatory nature of the Rules.22

The Divisional Court in Warman ultimately held that

the fact that the motion engages the important Charter value of freedom of expression, as well as the right to privacy, heightens the need to have regard to considerations beyond the traditional concerns of relevance and privilege.23


The Divisional Court imposed a screening process. It held that, in determining whether to order production, a court should apply the principles articulated in BMG and Irwin Toy and that the motions judge was therefore required to have regard to the following considerations:24

  • whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
  • whether the plaintiff has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
  • whether the plaintiff has taken reasonable steps to identify the anonymous party and has been unable to do so; and
  • whether the public interest favouring disclosure outweighs the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.25

This test differs from BMG since some of the BMG considerations are unnecessary where disclosure is sought from a defendant rather than a third party. As well, the threshold for the plaintiff's claim is prima facie, rather than bona fide, since the Charter right of freedom of expression is engaged.

The Divisional Court also acknowledged that there may be circumstances in which other procedural protections may be required, but declined to impose a requirement to give notice, for example, in the circumstances of this case.

In imposing this screening test, the Divisional Court used its inherent jurisdiction to bring consistency to this area of the law. The Divisional Court observed that there "is no meaningful basis for distinguishing the circumstances or the issue before the Court" from BMG and Irwin Toy. Disclosure of identity information should not be automatic. Otherwise, a plaintiff with no legitimate claim could misuse the court rules by, for example, commencing a frivolous action against an Internet service provider for the sole purpose of unmasking an anonymous Internet commentator. As the Court said, "a third party can be made a defendant for the price of issuing a statement of claim." The Warman decision ensures that this tactic would not mean that the developed law can be avoided altogether.

Wendy Matheson's civil litigation practice focuses on corporate and commercial matters, technology and intellectual property, product Internet and E-Commerce Law in Canada July 2010 Volume 11, No. 3 25 liability, defamation and other media law issues, privacy, professional discipline and negligence and human rights.

Natalie Biderman's civil litigation practice focuses on corporate/commercial litigation, including class actions, broker/dealer litigation and public law.


1 [2010] O.J. No. 1846, 2010 ONSC 2126 (Div. Ct.)[Warman].

2 Irwin Toy Ltd. v. Joe Doe, [2000] O.J. No. 3318, 12 C.P.C.(5th) 103 at paras. 11–12, 18 (Ont. S.C.J.) [Irwin Toy].

3 R. v. Cuttell, [2009] O.J. No. 4053 at paras. 14–16 (Ont. C.J.) [Cuttell], citing R. v. Plant, [1993] S.C.J. No. 97, [1993] 3 S.C.R. 281 at 292, 293 [Plant]; R. v.

Edwards, [1996] S.C.J. No. 11, [1996] 1 S.C.R. 128

at para. 45; R. v. Tessling, [2004] S.C.J. No. 63,

[2004] 3 S.C.R. 432 at para. 32.

4 Cuttell, ibid.

5 Ibid. at paras 3, 27.

6 Ibid. at paras. 22-25.

7 See, for example, R. v. Wilson, [2009] O.J. No. 1067 (S.C.J.).

8 [1974] A.C. 133 (H.L.); GEA Group AG v. Flex-Ngate Corporation, [2009] O.J. No. 3457, 96 O.R.

(3d) 481 at paras. 40-54 (C.A.) [GEA].

9 BMG Canada Inc. v. John Doe, [2005] F.C.J. No. 858, [2005] 4 F.C.R. 81 at paras. 15(e), 30, 32 (F.C.A.), aff'g [2004] F.C.J. No. 525, [2004] 3 F.C.R.

241 at para. 13 (F.C.) [BMG].

10 Ibid. at para. 38 (F.C.A.).

11 GEA, supra note 8 at paras. 48-51, 62, 91.

12 Supra note 2.

13 Ibid. at paras. 11-12, 18.

14 [2009] O.J. No. 3689 (S.C.J.).

15 Warman, supra note 1 at paras. 15-17.

16 S.C. 2000, c. 9.

17 Warman, supra note 1 at para. 17, citing Canada (Elections Canada) v. National Citizen's Coalition, [2003] O.J. No. 3420 at paras. 18, 20-21, 34, 36-38, s. 1 analysis [2003] O.J. No. 3939 at paras. 29-30, 32 (Ont. C.J.).

18 See, for example, McIntyre v. Ohio Elections Commission, 514 U.S. 334 at paras. 3-4 (1995).

19 Warman, supra note 1 at para. 18, citing Hill v. Church of Scientology of Toronto, [1995] S.C.J. No. 64, [1995] 2 S.C.R. 1130 at para. 21.

20 Warman, ibid. at para. 18, citing Plant, supra note 3, and Cuttell, supra note 3.

21 Warman, ibid. at para. 19.

22 D.P. v. Wagg, [2004] O.J. No. 2053, 71 O.R. (3d) 229 (C.A.), aff'g [2002] O.J. No. 3808, 61 O.R. (3d) 746 (Div. Ct.).

23 Warman, supra note 1 at para. 32.

24 Ibid. at para. 34.

25 Ibid.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.