The Coast went through a legal situation recently regarding privacy and online commenting, and on our lawyer’s advice we were uncharacteristically quiet about it in the paper and online. Of course, people have still been talking about it. Walking out of a Nova Scotia Supreme Court courtroom last week and into the business end of a scrum of reporters and cameras was a major Backwards Day moment for me. Instead of asking questions, I was answering. And when it was over, and the journalists printed and posted and broadcast their stories across the country, the Backwards Day effect continued. A story involving The Coast generated approximately a bajillion comments and at least one phone-in radio show, and The Coast didn’t mention it.
I’m sorry that you had to hear about it someplace else. Now that the legal fog we’ve been in is clearing, and we can talk about it, you’re probably tired of the whole mess. Believe me, I understand, and will take no offence if you skip to the next letter.
We were in court because somebody wanted information from our website’s logs in order to launch a defamation suit against some of our online commenters. Internet Protocol information in particular is a sort of digital fingerprint, as the IP address can pinpoint quite closely where in the offline world a comment came from. Constant IP tracking is a feature of the internet, and it means that very little online activity happens in an anonymous vacuum.
People often approach The Coast asking for IP addresses so they can try to get hold of a member of our online community. No matter the reason---from Who is my secret admirer? to Who do I sue?---if we just handed over the info we’d probably be violating privacy laws. So in this case we gave the standard answer: That is information related to our business, and we won’t share unless you get a court order. Soon enough we were in court, where Supreme Court Justice M. Heather Robertson granted the order forcing us to surrender the IP information.
Like Google, who was also named by the court order, we didn’t put up a fight in Justice Robertson’s court and we surrendered the information as required by the order. This decision inspired second-guessing from various armchair lawyers online. The Coast should defend its journalistic sources, they said, or at least ought to honour its committment to protect anonymous commenting. One commenter on the Globe and Mail site said that “apparently some low-ranking district court judge now makes law. Congratulations on one of the most backward decisions in recent history.” My favourite comment is the one that starts: “IMO, it’s not ‘libel’ if....”
But the laws are not what we want them to be; they are what they are. Although lots of things about how the internet fits into the legal system are still being worked out, the laws of libel and defamation definitely include such things as online comments. Not only was the Supreme Court judge well within the law when she ordered us to surrender the IP addresses, but our highly experienced media lawyer says judges grant these sorts of court orders all the time.
We don’t hear about most of these cases. We hear about the exceptions, the hard-fought contentious cases that may set a precedent. But the current situation was never going to be one of those. The commenters were not journalistic sources who were promised anonymity; they were people who chose to say things on our site---things that violated our policies and which we apologized for permitting on the site. We could have claimed they were sources, but there are legal tests that decide whether someone really is a source, and this situation failed them all. Similarly, while we allow anonymous commenting, we do not promise confidentiality.
There may be an argument to make about free speech, but it’s not necessarily applicable in this country. Canadian law is a much different beast than American law, with its oft-repeated guarantees for freedom of expression. It is significant that the American icon of the untamed frontier is the cowboy, while Canada’s is the Mountie. Here, internet commenters are “like other people,” as Justice Robertson put it in her ruling, and “have to be accountable for their actions.”
That said, we have enough freedom that you don’t have to agree with our decision or the judge’s. But you should be aware this doesn’t change anything in terms of anonymity and commenting at thecoast.ca. The discussions are an important part of The Coast online; they are wide-ranging, open to practically anyone, full of free language.
However, that doesn’t mean they are perfectly anonymous and confidential. We don’t guarantee anonymity, we can’t guarantee it and if you choose to post a comment on our site, we can only protect you as far as the law allows. --Kyle Shaw, editor, The Coast