The Supreme Court of Canada determined yesterday, in A.B. v. Bragg Communications, that a 15-year old can proceed anonymously to pursue the identity of her Facebook cyberbully.
The 15-year old, A.B., found out that someone had posted a face Facebook profile with her picture, a modified version of her name, and other identifying particulars. The profile also included demeaning comments about A.B.'s appearance, and sexually explicit references.
Facebook provided the IP address associated with the Nova Scotia account holder. The Internet provider, Eastlink, agreed to provide more specific information about the address – if a court authorized it to do so. A.B. brought an application for such an order, and along with the application requested (i) permission to seek the identity of the Facebook cyberbully anonymously (the "anonymity request"), and (ii) a publication ban on the content of the fake Facebook profile.
While Eastlink did not oppose the privacy requests, the Halifax Herald and Global Television did. The Nova Scotia court granted the order requiring Eastlink disclose the information about the identity of the cyberbully. However, it denied A.B.'s anonymity request and the publication ban, on the basis that she had not proved specific harm to her that would outweigh restricting access to the media. Put simply, the media's right to access and report on the facts of the case outweighed A.B.'s right to privacy. This was upheld at the Court of Appeal.
A unanimous Supreme Court overturned this, stating that:
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 Supreme Court noted that the Canadian Newspapers decision had established that the limits imposed by prohibiting identity disclosure [in a criminal sexual assault case] on the media's right to feedom of the press are minimal: the media can be present at the hearing, and report facts and the conduct of the trial, without revealing the complainant's identity.
In yesterday's A.B. decision, the Supreme Court placed great emphasis on the inherent vulnerability of children, and the importance of protecting their privacy in the context of cyberbullying. In the view of the Supreme Court, if we accept that, then surely we must accept the need to prohibit identity disclosure in this case, just as the Court did in the criminal context in Canadian Newspapers.
The Supreme Court allowed A.B.'s appeal in part: her identity would be protected, and the identifying information in the fake Facebook profile. The non-identifying information in the profile could be disclosed.
This decision provides further direction for those conscious of the protection of the privacy of children, and wondering about the specific content of those obligations. Unlike the United States, Canada has no Children's Online Privacy Protection Act (COPPA), and while there are set age and child-specific standards in Canadian criminal laws, we have no set age or child-specific standards in our federal privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA) . The Supreme Court noted that:
Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people's privacy under the Criminal Code, R.S.C., [...] the Youth Criminal Justice Act [...], and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child [...], all based on age, not the sensitivity of the particular child.
The Supreme Court has sent a message that in contexts where children may be particularly vulnerable – even when the child is 15 years old, and the context is Facebook – the law will protect their privacy on an objective basis based on age, not individual maturity or temperament.
For more information, visit our Data Governance Law blog at www.datagovernancelaw.com
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