By allowing a 15-year old girl to proceed anonymously in a legal action against her cyberbully, the Supreme Court of Canada (SCC) has identified the interests of privacy and protection of children from cyberbullying as sufficiently compelling to justify restricting the core interests of the open court principle and a free press.
In taking this stance, the Court has further refined the balance struck in Canada between freedom of the press and individual interests. Freedom of the press, particularly with respect to media coverage of court proceedings, is considered “essential to the promotion of the open court principle, a central feature of not only Canadian justice, but Canadian democracy.”1 The courts have been concerned that they should not allow personal concerns of a litigant, including emotional distress and embarrassment, to override the open court principle too quickly. In the developing jurisprudence, however, courts have in some instances recognized that individual privacy interests should be protected. The cases have established, however, that litigants bear a burden to produce substantial evidence demonstrating that without a publication ban there will be a serious risk to the proper administration of justice or the litigant’s personal well-being. It must be demonstrated that the order is necessary in order to prevent a serious risk to an important interest, and that the benefits of the confidentiality order outweigh its deleterious effects, including the effects on the right to free expression.2
Therefore, the Court’s willingness to allow A.B. her anonymity might be seen as a significant step for the protection of privacy. The SCC relied on a finding of objectively discernible harm to overturn the Nova Scotia Court of Appeal’s conclusion that the girl had failed to meet the evidentiary burden of showing that she would suffer real and substantial harm. While this decision opens the door to arguments for the protection of privacy on the basis of reason and logic rather than exclusively on the basis of evidence of direct harm to an individual, the Court’s focus on the unique vulnerability of children in the context of cyberbullying ensures any opening is a narrow one.
The Canadian justice system affords generally greater protection for the privacy of children than adults, at least partly in recognition of their inherent vulnerability. The Supreme Court stressed that this attribution of vulnerability is based on age, not individual characteristics. The Court’s finding of harm was deeply entrenched in evidence of the distinct psychological consequences of cyberbullying on young people. Several interveners spoke to the importance of anonymity in allowing children to protect themselves from bullying.
The Court accepted the importance of anonymity to the ability of children to protect themselves, tying this protection to the proper administration of justice. To address the media concerns of limitations on the open courts principle, the Court relied on its previous jurisprudence, including its holding that refusing to protect the identity of a sexual assault victim might undermine the administration of justice by preventing complainants from coming forward. As in those circumstances, if a publication ban is required for particularly vulnerable individuals to access the justice system, the identity of the victim is of relative unimportance to the exercise of the open courts principle.
The decision leaves open how the courts may deal with protecting the privacy of adults in similar circumstances. Certainly, an adult could be the subject of sexualized cyberbullying much in the way A.B. was. An adult could also be unwilling to take legal action to protect themselves without the protection of their identity. Based on the Court’s focus on youth in this decision, it is unclear whether a future decision would be based on a finding of objectively discernable harm in the context of an adult.
“The decision also leaves open the question as to whether there will be further distinctions drawn between the rights of children and adults in their interactions on the Internet, particularly social media.
Internet service providers and media operating online will also need to be alert to the decision, to ensure that the identity of children in cyberbullying cases is not inadvertently disclosed.”etc.