Privacy trumps the press: The Supreme Court grants anonymity to victims of cyberbulling in AB v Bragg Communications Inc

We have all seen how Facebook can shine a global light on local events with the help of news media. Posts that attract enough attention are reported, creating an even bigger splash online. This feedback can even amplify the impact of these events, turning a small protest into a revolution and a politician’s indiscretion into a downfall.

In AB v Bragg Communications Inc, [2012] 2 SCR 567, the Supreme Court of Canada (“SCC”) unanimously decided to prevent this process from further harming victims of cyberbullying who turn to the courts. The SCC held that victims of cyberbullying are entitled to remain anonymous in court applications aimed at unmasking the identity of their online bully. Writing this 7-0 decision, Justice Abella argued that the interests of privacy and protection of children from cyberbullying are “sufficiently compelling to warrant restrictions on freedom of the press and open courts.”

Facts

The complainant in this case is a 15-year-old girl (“AB”) who discovered that someone had created a Facebook profile that used her picture and a modified version of her name. The content of the profile was sexual and insulting. Facebook’s counsel provided the complainant with the IP address behind the profile. Counsel for the complainant discovered that the IP address was based in Darmouth, Nova Scotia, and that it was associated with an Internet provider called Eastlink. The respondent, Bragg Communications, is the owner of Eastlink.

After receiving an assurance from Eastlink that it would provide specific information about the IP address if it received authorization from a court, the complainant’s father, as guardian, applied to the Supreme Court of Nova Scotia (2010 NSSC 215) for an order requiring Eastlink to disclose the identity of the person using the IP address. The complainant intended to identify a potential defendant for a defamation action. Arguing that she suffered harm from the profile and that she wanted to reduce the chance of further harm, the complainant asked the court to allow her to proceed anonymously. She also asked for a publication ban on the fake Facebook profile content. The Halifax Herald and Global Television opposed both requests as interveners.

The NSSC granted the order requiring Eastlink to disclose information about the identity of the person behind the IP address because the complainant had made out a prima facie case of defamation. However, it denied the request for anonymity and the publication ban because the complainant did not provide sufficient evidence of specific harm. The Nova Scotia Court of Appeal (2011 NSCA 26) upheld the trial decision on the ground that the complainant had not demonstrated a harm to her that justified the media access restriction that anonymity would entail.

Analysis

The SCC divided the legal analysis into two stages: 1) The publication ban and anonymity request must be necessary to protect an important legal interest. 2) The analysis then proceeds to whether the measures strike the proper balance between the open court principle and the complainant’s privacy rights. The measures must impair freedom of expression as little as possible. The restriction is unjustified if equally effective alternative measures exist.

There is no substantive analysis of the open court principle in this case. The SCC noted only that “sufficiently compelling” interests can justify departures from the principle and that it remains a fundamental part of the common law: “[T]he critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence….”

On the issue of whether there was an important legal interest, the amicus curiae argued that the mere fact of the complainant’s age was not sufficient to compromise the open court principle and freedom of the press. They also argued that the complainant did not provide evidence of a specific harm that would flow from the disclosure of her identity. The SCC noted that evidence of specific harm is not always required because courts can find that there is objectively discernable harm in particular cases: “[A]bsent scientific or empirical evidence of the necessity of restricting access, the court can find harm by applying reason and logic.”

The SCC found that there is objectively discernable harm in this case primarily on the ground that children are recognized as inherently vulnerable in both statutory and common law. Noting that the “[r]ecognition of the inherent vulnerability of children has consistent and deep roots in Canadian law,” the SCC cited child privacy protection provisions in the Criminal Code, RSC, 1985, c C-46, the Youth Criminal Justice Act, SC 2002, c 1, and the Convention on the Rights of the Child as statutory examples that link the vulnerability of children to their age. Since the law “attributes the heightened vulnerability based on chronology, not temperament,” the SCC found that it is not necessary for a child to demonstrate their particular vulnerability to sexualized online bullying.

Anchoring this finding is the importance the SCC attributed to protecting the privacy of children that participate in the justice system. The SCC argued that this understanding recently received constitutional justification in Toronto Star Newspapers Ltd v Ontario, 2012 ONCJ 27: “[T]he constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under section 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter.”

The SCC supported the inference that children may suffer harm through cyberbullying by extensively referencing the Report of the Nova Scotia Task Force on Bullying and Cyberbullying (“Report”). In addition to linking cyberbullying with “extensive” loss of self-esteem, anxiety, fear and school drop outs, the Report also showed that “victims of bullying were almost twice as likely to report that they attempted suicide compared to young people who had not been bullied.” The Report also argued that the Internet context of cyberbullying can be particularly harmful because the content can be spread widely, quickly, and anonymously.

These conclusions also informed the SCC’s policy analysis of the cyberbullying problem. The SCC argued that refusing a grant of anonymity in legal actions involving cyberbullying would create a chilling effect on its victims taking steps to protect themselves. Without the ability to pursue these legal actions anonymously, victims of cyberbullying may choose to avoid the risk of further harm from public disclosure of their identity.

The SCC then concluded that the anonymity request does protect the important privacy rights of children:

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.

The analysis then proceeds to determining the countervailing harms to the open court principle and freedom of the press. The SCC argued that this issue was decided previously in Canadian Newspapers Co v Canada (Attorney General), [1988] 2 SCR 122 [Canadian Newspapers]. In this case, the SCC upheld the constitutionality of a Criminal Code provision prohibiting disclosure of the identity of sexual assault complainants because the harm to the open court principle and freedom of the press was held to be “minimal.”

Citing this recognition in Canadian Newspapers of the “relative unimportance of identity,” the SCC argued that not disclosing the identity of victims of cyberbullying would also cause minimal harm to the open court principle and freedom of the press. Balancing this minimal harm of non-disclosure against the potential substantial harm of potential revictimization of cyberbullied victims, the SCC argued that the “benefits of protecting such victims through anonymity outweigh the risk to the open court principle.”

The SCC held that the publican ban should be denied because the grant of anonymity would ensure that the publication of the non-identifying Facebook profile content could not be connected to the complainant.

Conclusion

This decision removes a once-formidable obstacle to victims of cyberbullying seeking redress in the courts: that the very institution to which they are turning for help could compound their harm by requiring a public act of self-identification. By jettisoning this requirement for child victims of cyberbullying, the SCC has taken a step to ensure that the courts do not contribute to the spread of this personally devastating abuse of social media.