A recent decision of the Supreme Court of Canada has sent a message to all victims of cyberbullying– the Canadian courts can help you!
In A. B. v. Bragg, an anonymous cyberbully (or bullies) created a fake Facebook page, which contained derogatory and defamatory content about a 15 year girl. The girl brought a defamation and harassment action against the anonymous cyberbullies and sought an order from the Nova Scotia courts that would assist in identifying them. She also sought an order that would prohibit the publication of her identity. The reason for the publication ban was clear – if the plaintiff’s identity was made public by the Courts and the media, it might lead to further bullying, harassment, and psychological harm to the young girl. The Nova Scotia courts granted the plaintiff an order seeking to identify her anonymous bullies, but refused to grant the publication ban, relying on the a long standing doctrine that our Courts should be open to the public. The plaintiff appealed and her case made its way to the Supreme Court of Canada.
The Supreme Court of Canada granted the plaintiff’s request to shield her identity. In its unanimous decision, the Court affirmed the importance of protecting our youth from cyberbullies. By so doing, the Court has enabled other victims to come forward and use the civil courts to track down their tormentors, without the fear of having their identity revealed to the public.
In Ontario, when a child is a victim of cyberbullying and the principal of that child’s school becomes aware of the situation, the principal must take active steps to investigate the cyberbullying to determine, amongst other things: (a) whether the culprit is a school pupil; and (b) whether the cyberbullying took place while “at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate”.
An obvious conundrum arises out of the duty that principals must exercise. Since many cyberbullies do not identify themselves, it can be difficult for a principal to determine if the culprit is a school student.
School boards on behalf of principals in some extreme cases might consider recourse to the civil courts to aid in their investigation. As in the A.B. v. Braggcase, a court application can be brought on behalf of the victim seeking to identify the cyberbullies. If successful, it can potentially identify the cyberbullies. It might also reveal whether or not the online activity took place on school premises (for example, the cyberbully had connected to the Internet using the school’s Wi-Fi).
In addition, determining whether or not there has been an impact on school climate can be assisted by having a full record of the communication and knowing if other individuals, particularly students, have involved themselves by posting comments as well.
While investigation of cyberbullying remains a difficult task for principals, recent incidents in the media highlight the need to be thorough and vigilant in responding to a victim’s concerns, and applications to the Courts, in some circumstances, might assist principals to fully investigate a matter.