Anonymity is a feature of much Internet activity and is the foundation of a privacy interest that engages constitutional protection against things like unreasonable search (R. v. Spencer, 2014 SCC 43 ). However, claims for pain and suffering following a car accident require ICBC and other injury claimants to disclose the details of their loss, therefore, some would say, effectively doing away with anonymity in a civil context. Examples of anonymous online activity includes everything from gathering information for a school or work projects to playing online war games.
Compensation for physical and mental pain and suffering endured and to be endured, loss of amenities and enjoyment of life and loss of expectation of life must be proved on a balance of probabilities in a personal injury case. The factors that influence an award for pain and suffering were set out in Stapley v. Hejslet, 2006 BCCA 34 and include the age of the claimant, the nature of the injury, the severity and duration of the pain, disability, emotional suffering, loss or impairment of life, the impairment of family, marital and social relationships, the impairment of physical and mental abilities, loss of lifestyle and the claimant’s stoicism.
Loss of online anonymity, in my view falls under the heading of “loss of lifestyle”. However the real question is whether the loss of anonymity is a foreseeable result of the negligence of the defendant.
The nature of the privacy interest engaged by this discussion turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought. So when trying to prove loss of online activity the primary concern is with informational privacy.
Informational privacy is often equated with secrecy or confidentiality, and also includes the related but wider notion of control over, access to and use of information. However, particularly important in the context of Internet usage is the understanding of privacy as anonymity (2014 SCC 43, para 34-47).
The identity of a person linked to their use of the Internet must also be recognized as giving rise to a privacy interest beyond that inherent in the claimant’s name, address and telephone number found in the online subscriber information. Subscriber information, by tending to link particular kinds of information to identifiable individuals may implicate privacy interests relating to a claimant’s identity as the source, possessor or user of that information.
Orders requiring disclosure of this information may in themselves infringe this privacy interest. Claimants are entitled to maintenance of the confidentiality absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest ( see Logan v. Hong, 2013 BCCA 249, para 11)
The defendant in an ICBC personal injury case may demand to link a given IP address to subscriber information which in effect is a request to link a specific person to specific online activities. This sort of request engages the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which has now been recognized by the Supreme Court of Canada as engaging significant privacy interests. Whether the claimant needs to disclose this information in order to prove the loss is yet another question that is up for debate.
The duty of confidentiality inherent in our discovery process may provide some protection against disclosure of online anonymity. Furthermore orders, where available, sealing parts of the file may also add some protection and maintenance of the personal injury claimant’s privacy. Further development of this area is inevitable given the continued growth of internet usage.
Posted by Personal Injury Lawyer in Vancouver Mr. Renn A. Holness, B.A. LL.B.