In AB v. Bragg Communications Inc, 2010 NSSC 215, an unknown person created a fake Facebook profile of a teen-aged girl, including photographs and allegedly defamatory sexual commentary about her. The girl’s litigation guardian sought to proceed by way of initials, a publication ban and a court order requiring the ISP to disclose the identity of the unknown person. The court concluded that there was no compelling case for protecting the girl’s identity, either by the use of initials to describe the parties or by way of a publication ban. The public interest in disclosure prevailed. The Facebook page was no longer accessible and the evidence did not indicate a risk that it would be republished. A prima facie case of defamation had been made out, however, and there was no other way to obtain information about the unknown person: the ISP was ordered to disclose information about the unknown person. The judgment was upheld by the Nova Scotia Court of Appeal as a matter of deference to the trial judge on an interlocutory matter where there was no error of law or patent injustice, but with strong endorsement of the principle of open courts: 2011 NSCA 26.
Abella J, writing for the SCC, has affirmed but only in part. While recognising the importance of the principle of open courts and the freedom of the press, she stated that it is also important to protect the privacy of an inherently vulnerable minor from ‘the relentlessly intrusive humiliation of sexualized online bullying’. AB may now proceed anonymously to seek disclosure of the relevant IP user or users, although the publication ban will not extend to that portion of the Facebook profile containing no personal information. The costs orders against AB in the Nova Scotia courts were also set aside.
[Link available here].