[authors: Ranjan K. Agarwal and Michael J. Paris]
On September 27, 2012, the Supreme Court of Canada released its decision in AB v Bragg Communications Inc., an important constitutional case at the intersection of defamation law and children’s rights.
A.B., the anonymous plaintiff, is the victim of cyberbullying. In March 2010, she discovered that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name and other identifying particulars. The Facebook profile made unflattering commentary about A.B.’s appearance and included sexually explicit references. At the time, A.B. was 15 years old.
A.B.’s father, on her behalf, sought disclosure of the IP address used to post the Facebook profile. A.B. intended to sue the cyberbully for defamation. She asked the court to permit her to sue anonymously and to ban publication of the fake Facebook profile. The Halifax Herald and Global Television opposed her request on the grounds that both of the requested privacy measures violated the freedom of the press. The Nova Scotia courts agreed. In their view, there was insufficient evidence of specific harm to A.B. that would justify a press ban or anonymous proceedings.
A.B. appealed to the Supreme Court of Canada. In a unanimous judgment, the court granted A.B.’s request to sue anonymously and banned publication of any identifying details from the fake Facebook profile.
The open courts principle and the freedom of the press are protected by the Canadian Charter of Rights and Freedoms. In order to grant a publication ban that would impair this hallmark right, the court had to be persuaded that A.B.’s interests justified that infringement. In this case, the court identified two such interests: privacy and the protection of children from cyberbullying.
A.B.’s privacy interest was tied to both her age and the nature of the victimization she sought protection from (which the court described as “relentlessly intrusive humiliation of sexualized online bullying”). The court found that, based on reason, logic and common sense, A.B. would suffer objective harm if her identity was disclosed given the “psychological toxicity” of cyberbullying.
Further, declining the confidentiality order in this case would also harm children generally and the administration of justice given that a bullied child may not pursue “responsive legal action.” As the court concluded: “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 decision is a modest step forward for the court as Canadian law continues to adapt to the challenges presented by the Internet and social media. It is a useful and prominent reminder for clients that courts will routinely grant orders to disclose customer information where there is sufficient evidence linking an IP address to defamatory Internet material. The case is also an important reminder that material posted on the Internet is never truly anonymous and that great care should be taken when making the decision to publish or post material online – particularly when the subject of any published material is a young person or might be defamatory. Finally, this case is an important victory for child-rights’ advocates in that it empowers children to use legal means to combat cyberbullying.
Jeffrey Leon and Ranjan Agarwal were counsel to UNICEF Canada, interveners in the appeal before the Supreme Court of Canada in support of A.B.