On September 27, 2012, the Supreme Court of Canada released its
decision in AB v Bragg Communications Inc., an important
constitutional case at the intersection of defamation law and
A.B., the anonymous plaintiff, is the victim of cyberbullying.
In March 2010, she discovered that someone had posted a fake
Facebook profile using her picture, a slightly modified version of
her name and other identifying particulars. The Facebook profile
made unflattering commentary about A.B.'s appearance and
included sexually explicit references. At the time, A.B. was 15
A.B.'s father, on her behalf, sought disclosure of the IP
address used to post the Facebook profile. A.B. intended to sue the
cyberbully for defamation. She asked the court to permit her to sue
anonymously and to ban publication of the fake Facebook profile.
The Halifax Herald and Global Television opposed her request on the
grounds that both of the requested privacy measures violated the
freedom of the press. The Nova Scotia courts agreed. In their view,
there was insufficient evidence of specific harm to A.B. that would
justify a press ban or anonymous proceedings.
A.B. appealed to the Supreme Court of Canada. In a unanimous
judgment, the court granted A.B.'s request to sue anonymously
and banned publication of any identifying details from the fake
The open courts principle and the freedom of the press are
protected by the Canadian Charter of Rights and Freedoms.
In order to grant a publication ban that would impair this hallmark
right, the court had to be persuaded that A.B.'s interests
justified that infringement. In this case, the court identified two
such interests: privacy and the protection of children from
A.B.'s privacy interest was tied to both her age and the
nature of the victimization she sought protection from (which the
court described as "relentlessly intrusive humiliation of
sexualized online bullying"). The court found that, based on
reason, logic and common sense, A.B. would suffer objective harm if
her identity was disclosed given the "psychological
toxicity" of cyberbullying.
Further, declining the confidentiality order in this case would
also harm children generally and the administration of justice
given that a bullied child may not pursue "responsive legal
action." As the court concluded: "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 decision is a modest step forward for the court as Canadian
law continues to adapt to the challenges presented by the Internet
and social media. It is a useful and prominent reminder for clients
that courts will routinely grant orders to disclose customer
information where there is sufficient evidence linking an IP
address to defamatory Internet material. The case is also an
important reminder that material posted on the Internet is never
truly anonymous and that great care should be taken when making the
decision to publish or post material online - particularly when the
subject of any published material is a young person or might be
defamatory. Finally, this case is an important victory for
child-rights' advocates in that it empowers children to use
legal means to combat cyberbullying.
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.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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