Federal Court of Appeal Establishes Test for Disclosure of Internet Users' Identity

Last week, the Federal Court of Appeal set an important test for disclosing the identities of Internet users accused of civil wrongdoing. The decision in the closely-watched music file-sharing appeal, BMG v John Doe, 2005 FCA 193, will have a far-ranging impact on privacy and freedom of expression, as well as on the continuing copyright reform debate in Canada. The Court took note of the tension between the privacy rights of individuals and parties whose rights may be infringed or abused by anonymous Internet users. This notice informed its decision in a number of important respects. In dismissing the Canadian Recording Industry Association's appeal, the Court ruled that since the documents sought by the plaintiff were "buried in logs and tapes but [are] not presently in readable format" the evidence could not be produced. Further, in thwarting the plaintiff's motion to disclose the identities of the 29 alleged file-sharers who were the proposed defendants in this case, the Court affirmed the Motions Judge's finding that accepting deficient evidence would increase the risk that innocent persons might have their privacy invaded and be incorrectly named as defendants. The Court rejected the test adopted by the Motions Judge that a plaintiff must provide evidence of a prima facie claim before a court may grant an equitable bill of discovery. Writing for a unanimous court, Justice Richard found this test too onerous and adopted a lower threshold of a bona fide claim against the proposed defendant as the proper test. This bona fide test is subject to some limitations:

1. The plaintiff must show that it has:
   1. targeted the correct IP address by providing clear, admissible evidence that it has correctly linked online activities to a specific IP address at a particular time.
   2. "a bona fide claim that unknown persons are infringing their copyright" or other alleged wrongdoing. The claim must satisfy the court that the plaintiff intends to bring an action based on the information sought and that there is no other improper purpose for seeking the identity of these persons".
2. "There should be clear evidence to the effect that the information cannot be obtained from another source such as the operators of the named websites."
3. "The public interest in disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made"
   1. the information on which a request for identification is made (e.g., an IP address) must be timely. There must be no undue delay between the investigation and the motion for disclosure.
   2. in their investigation, plaintiffs must "limit the acquisition of information to [the subject of the complaint]"

In cases where the plaintiff has met each of the factors above, "caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way". Further, courts will be required to give specific directions as to the type of information disclosed and the manner in which it can be used, and should consider making a confidentiality order or identifying the defendant by initials only. Full decision of the Federal Court of Appeal in BMG v John Doe http://www.cippic.ca/en/news/documents/19May2005Ruling.pdf For an interpretation of the test in BMG v John Doe by one of the counsel in the case, see: http://www.michaelgeist.ca/ Summary by: Jason Young