Anti-bullying advocates will applaud a recent Supreme Court of Canada decision that paves the way to give young victims of online bullying stronger legal rights. The case of A.B. v Bragg Communications Inc. is notable as it directly pits society’s interest in the protection of children from cyberbullying against freedom of the press and the open court principle.
The facts of the case are straightforward. A 15-year old Nova Scotia girl, identified only as A.B., discovered that someone had created a phony Facebook profile using her name and picture. The picture was accompanied by some unwelcomed commentary about the girl’s appearance along with sexually explicit references. A.B. applied to a Nova Scotia court for an order requiring Eastlink, an internet service provider, to disclose the identity of the person(s) standing behind the IP address used to publish the phony Facebook profile. In order to protect her privacy, A.B. also asked the court for permission to make her application anonymously and for a publication ban on the contents of the fake Facebook profile. Her request to proceed anonymously and under a publication ban were denied by the trial judge and the Court of Appeal but those decisions were partially overturned in this case by the Supreme Court of Canada.
In reaching its decision to allow A.B. to proceed both anonymously and under partial publication ban, the Supreme Court carefully considered the impact such a decision would have on the open court principle—the idea that court proceedings should be open and accessible to the media and the public. While it was observed that this principle is a “hallmark of a democratic society” and is “inextricably tied to freedom of expression,” the Court held that the privacy and protection of children from cyberbullying must ultimately prevail because the serious harm in failing to protect young victims of bullying through anonymity outweighs the minimal harm to press freedom.
The Court’s conclusion on this point was buttressed by a report on bullying and cyberbullying, which noted that “The immediacy and broad reach of modern electronic technology has made bullying easier, faster, more prevalent, and crueller than ever before.” Equally unsettling for the Court was the fact that, without anonymity, children might shy away from pursuing responsive legal action out of embarrassment or fear of retaliation. Finally, the Court noted that a victim’s identity constituted only a “sliver of information” and that any restriction on freedom of the press and the open court principle was thus “minimal”. For these reasons, The Court found that A.B. could proceed anonymously and with a publication ban covering the identity-revealing content of the phony Facebook profile.
This case demonstrates that freedom of the press and the open court principle are not absolute rights and that the privacy and protection of children from cyberbullying will prevail over press freedom in cases such as this one.