The Supreme Court of Canada’s decision in A.B. v. Bragg Communications Inc., 2012 SCC 46, is an important one, dealing with striking the correct balance between the open courts principle, privacy, and the rights of children.
The Supreme Court ultimately decided to grant the teenage victim of cyberbullying the legal right to pursue the identity of her bully anonymously through the courts, however denied her Application for a publication ban in relation to the case.
In March 2010, a person created and published a fake Facebook profile using the 15 year old victim’s photograph and a slightly altered version of her name, the profile including a number of sexually explicit references about her as well as unflattering comments about her appearance.
The victim sought an order to force the defendant, an Internet Service Provider, to disclose the owner of the IP address used to post the profile for the purpose of suing the publisher for defamation. Counsel for Facebook had already provided the girl with the IP address used by the person who had created the fake profile.
In pursing her application to proceed anonymously and further a ban on the publication of the content of the fake profile, the court was obliged to consider the open courts principle and the harm which a victim of “sexualised cyberbullying” would suffer were her request for anonymity refused.
Two media groups opposed her requests for anonymity in seeking to discover the identity of the publisher and a ban on publishing the content of the fake profile.
The Supreme Court of Canada acknowledged the significance of the open courts principle, but also carefully considered the importance of privacy and the protection of children from cyberbullying in determining the victim’s application.
The Court considered a wide range of literature on the effects of bullying and cyberbullying, including sexualised bullying in arriving at the opinion that there did exist an objectively discernable harm, because it is logical that children suffer immense psychological harm from cyberbullying.
The Court’s reasoning was that all children are entitled to protect themselves from bullying and cyberbullying, and would suffer harm if they didn’t take steps to protect themselves against the risk of suffering further harm arising from re-victimisation caused by public disclosure. This right to protection, the court concluded, cannot exist without further protection of anonymity and the anonymous pursuit of the identity of cyberbullies.
The court therefore decided to granted the victim’s order requiring the ISP to disclose the information about the publisher of the fake Facebook profile as a prima facie case of defamation had been made out, and there was no other means of identifying the person who published the defamatory material.
Whilst the Court allowed the victim to proceed anonymously, it decided that there was no reason for a publication ban in relation to the non-identifying content of the fake Facebook profile. The Court reasoned that where alternative measures could effectively protect the interests engaged, the restriction on publication would be unjustified.
The Court considered carefully the victim’s privacy interests, connecting this to her age and partlcularly the nature of victimisation she sought protection from.
The Court remarked that in this particular case it was not just a question of the victim’s privacy but protecting her from the relentlessly intrusive humiliation of sexualised online bullying. The court gave weight to information about the insidiousness of cyberbullying, a particularly pervasive form of bullying because of it’s inescapability.
The Court paid heed to a number of studies and published papers confirming the psychological harm that bullying does, and the finding that allowing names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit victims’ co-operation with authorities.
The Court departed from precedent in ruling that it was unnecessary for the girl to advance evidence of direct harm she would suffer from the the disclosure of her identity. It is not yet clear whether the Court’s decision will open the floodgates to further anonymity claims, however the unique facts of the case should be noted, including the need to treat victims of cyberbullying, particularly of the kind suffered by the victim, with particular sensitivity.