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.
Footnotes
1 M.E.H. v. Williams, 2012
ONCA 35 at 33.
2 Sierra Club of Canada v.
Canada (Minister of Finance), [2002] 2 S.C.R. 522 at para. 53, per
Iacobucci J.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
With security breaches being on the rise, the requirement to have organizations notify the relevant privacy commissioners and affected individuals upon a security breach taking place is becoming increasingly important.
A credit union (the "Employer") dismissed a helpdesk analyst (the "Analyst") with cause after discovering the Analyst had, without permission or authorization, remotely accessed another employee’s confidential document stored on the Employer’s network.
There are a number of curious features to the Privacy Notice splash page for Canada’s new online tool for making access to information (ATIP) requests.
The Office of the Privacy Commissioner of Canada has announced that the Federal Trade Commission, the UK Information Commissioner’s Office, the OPC and the Office of the Information and Privacy Commissioner for British Columbia and 15 other enforcement authorities worldwide are participating in an "Internet Privacy Sweep".
In the case of Canada’s Anti-Spam Legislation, organizations should consider the transition periods , not only what the cover, but also what they don’t.
The concept of a reasonable expectation of privacy has its origins in the power of authorities, usually police, to search or conduct surveillance without first obtaining a search warrant.
Twitter
Facebook
Digg 
