Supreme Court Strikes Blow Against Cyberbullying

The Supreme Court of Canada has just released the decision in A.B. v. Bragg Communications Inc. 2012 SCC 46 permitting a 15-year-old girl to get the identity of her persecutor from a Nova Scotia service provider and yet remain anonymous.

An unknown person created a fake Facebook profile of the girl that was unflattering and contained explicit sexual references. Facebook eventually removed the profile and rendered up the IP address associated with the account. The local N.S. service provider agreed to give information about the holder of the account if authorized to do so by a court. The girl, through her father as guardian, brought a motion to compel the disclosure of the identity of the account holder as a potential defendant in a defamation suit and for an order that she might remain anonymous. The court ordered the production of the information sought but declined to allow her to remain anonymous, on the ground that there was no evidence she would suffer harm from disclosure of her identity. The Nova Scotia Court of Appeal upheld the decision. Throughout, the girl’s request for anonymity was opposed by The Halifax Herald and Global Television.

Justice Abella wrote the 31 paragraph judgment of the court. She held that it was unnecessary for the girl to bring evidence of possible harm to her from disclosure of her identity. We treat persons under a certain age as ipso facto in need of and entitled to protections: “[A]bsent scientific or empirical evidence of the necessity of restricting access [by the press], the court can find harm by applying reason and logic. . . . The law attributes the heightened vulnerability based on chronology, not temperament. . . . ” At the same time, the harm done to the the public’s right to know was minimal: the identity of the child adds nothing of value to the ability of the press to report matters.

[27] If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully.

Because the girl’s identity is to be protected, the court removed any ban on the publication of non-identifying material in the fake Facebook profile.

It will, I think, be the rare person who finds this decision a cause for concern. In the actual case, the public interest in knowing the victim’s name clearly approaches zero; and any concern would be of the “thin edge of the wedge” variety. Yet the case is easily distinguishable from worrying scenarios by the involvement of a minor and, more, a young woman victimized by sexual harassment, social facts notorious as the occasions for the abuse of power in our society. I would have hoped that the press would pick their battles with more care.

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Comments

  1. I would have hoped that the press would pick their battles with more care

    And the members of the legal profession assisted the press. Their response will be that they were standing on principle. (Gotta be careful with the spelling).

    DC

  2. ‘stepping on principle’??? In their defence, they did manage to convince both the lower courts privacy interests weren’t important enough here….

    Yet the case is easily distinguishable from worrying scenarios by the involvement of a minor and, more, a young woman victimized by sexual harassment, social facts notorious as the occasions for the abuse of power in our society.

    Simon — the Court was obviously very careful in its phrasing, so that the floodgates are not open on anonymity claims. However, I think this does signal a categorical shift that extends beyond the easy case (sexual harassment of a minor). Madam Justice Abella was very explicit that there was a need to clarify the relationship between the open court principle and _two_ types of countervailing interests: privacy AND protecting children from cyberbullying.

    I think this opens the door, albeit very cautiously, to new privacy-based anonymity claims. This door was somewhat firmly closed in Edmonton Journals v. Alberta.

    Of course, as you say, you still need to do more than simply show a privacy interest is engaged. How much more remains open, but the option is more clearly available now, arguably.

  3. The two Nova Scotia courts agreed with the press submissions. Maybe it took a court composed of a majority of women (4 of the 7 SCC judges who sat on the case) to impose some sense and sensitivity.

  4. John,

    I personally think the fact that our highest Court has an almost 1:1 gender ratio is one of reasons its decisions end up being so reasonable. Down south, for a contrary example, it seems to have taken an academic outcry of significant proportions to get SCOTUS to recognize the invasiveness of strip searches in schools.

    In this particular case, though, the Court seemed somewhat united in its sympathy. In oral argument, for example, Justice Rothstein seemed to be envisioning his hypothetical grand-daughter in the plaintiff’s shoes.

    So maybe at the end of the day, all of you are right and this is just a sympathetic fact pattern that will have little application beyond bullied youths….