Privacy protects anonymity in cyberbulling case says Supreme Court

The Supreme Court released its reasons in the A.B. v. Bragg Communications Inc., 2012 SCC 46 case yesterday. The main issue in the case was whether the privacy interests of a child to keep her identity anonymous in legal proceedings outweighed the open court principle.

The case arose from a 15-year-old girl finding out that someone had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. Accompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references. The page was removed by the internet provider later that month.

The girl, through her guardian, brought an application for an order requiring the ISP to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. She asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. The Supreme Court of Nova Scotia granted the request that the ISP disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl.

The Court ruled that given the vulnerable position of the child harm from disclosure could be inferred and that her request for anonymity should be granted.

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 acknowledgment of the relative unimportance of the identity of a sexual assault victim is a complete answer to the argument that the non-disclosure of the identity of a young victim of online sexualized bullying is harmful to the exercise of press freedom or the open courts principle. Canadian Newspapers clearly establishes that the benefits of protecting such victims through anonymity outweigh the risk to the open court principle.

The Court ruled, however, that once the identity of the minor was safeguarded, the balance of the facts about the case including information about the false Facebook account should be reported pursuant to the open court principle.

On the other hand, as in Canadian Newspapers, once A.B.’s identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile. If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B. The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.

I would allow the appeal in part to permit A.B. to proceed anonymously in her application for an order requiring Eastlink to disclose the identity of the relevant IP user(s). I would, however, not impose a publication ban on that part of the fake Facebook profile that contains no identifying information.

The application for disclosure of the identity of the alleged cyberbully was made under Nova Scotia’s Civil Procedure Rules, N.S. Reg. 370/2008. This type of order and the requirement of an ISP to disclose identifying information, commonly referred to as a Norwich order, was not challenged and was implicitly accepted as proper by the court. To obtain such an order an applicant must usually demonstrate that she/he has a bona fide claim. Although not discussed by the Court, it is also implicit tha the cyberbulling in issue would have had to disclose a bona fide cause of action such as defamation to be successful.

The Court did discuss the important constitutional status of privacy in Canada. It quoted from the decision of Cohen J. in Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 (CanLII) to explain the importance of privacy in the specific context of young persons who are participants in the justice system:

The concern to avoid labeling and stigmatization is essential to an understanding of why the protection of privacy is such an important value in the Act. However it is not the only explanation. The value of the privacy of young persons under the Act has deeper roots than exclusively pragmatic considerations would suggest. We must also look to the Charter, because the protection of privacy of young persons has undoubted constitutional significance.

Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment, the court stated that privacy is worthy ofconstitutional protection because it is “grounded in man’s physical and moral autonomy,” is “essential for the well-being of the individual,” and is “at the heart of liberty in a modern state” (para. 17). These considerations apply equally if not more strongly in the case of young persons. Furthermore, the constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under section 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter.

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