On September 27, 2012, the Supreme Court of Canada released the
Bragg decision,1 which allowed a
victim of cyberbullying to anonymously seek a court order to
identify the cyberbully. The Court was unanimous in reversing both
the judge of first instance and the Nova Scotia Court of
An individual's right to privacy is often at odds with the
public's right to a free press. Where the victim of
cyberbullying is a child and the press is facing a publication ban,
privacy rights directly collide with the open court principle and
reporting by a free press.
Bragg dealt with a 15 year old girl who discovered that someone
had posted a fake Facebook profile using a slightly modified
version of her name, a picture of her and other identifying
particulars. This fake profile was accompanied by derogatory
comments about her appearance and sexually explicit references.
Wanting to bring a defamation action, the girl (through a
litigation guardian) sought an order requiring the internet service
provider to disclose the identity of the person(s) who published
the profile. She wanted the Order to be anonymous.
Her request to proceed anonymously and to secure a publication
ban on the content of the profile caused two media groups to oppose
her request. The media groups prevailed at both the court of first
instance and Nova Scotia Court of Appeal. The two lower courts
denied the girl's request for anonymity because she was unable
to demonstrate sufficient harm to justify restricting access to the
media. Both lower courts ordered costs against the girl.
Justice Abella wrote the 7-0 decision which overturned both
lower courts. She weighed the considerations on either side of the
two competing values.
In favour of privacy and the girl's request, Abella J. noted
the constitutional value in protecting privacy, especially that of
children. She also pointed out the deeply-rooted Canadian practice
of protecting children, who are inherently vulnerable as
a consequence of their age. Based on expert reports, Abella J.
noted the elevated dangers from cyberbullying: the ease, immediacy
and broader reach of bullying over the internet which creates a
crueller form of bullying that extends into the child's home
and results in an increase of youth suicide attempts.2
She observed that the benefits of privacy in this context,
including increased reporting of wrongdoing and that privacy
prevents the "harms of revictimization upon
In favour of the public's interest in the freedom of the
press, Abella J. acknowledged the constitutional protections in
favour of the press and in favour of open court. She tempered these
considerations by referring to the Canadian Newspapers
Co4 decision that the harm caused by prohibiting the
media from disclosing a person's identity is minimal, and that
the identity of the person is a mere "sliver of
A careful balance was struck. The Court allowed the girl to
proceed anonymously with her attempts to identify the cyberbully.
However, the Court concluded that there was "little
justification for a publication ban on the non-identifying content
of the fake Facebook profile."6
The Supreme Court's decision is grounded in the evidence
that cyberbullying presents a risk to children who are all
inherently vulnerable, regardless of individual temperament.
Preventing disclosure of victims' identities promotes the
reporting of harmful activity and enhances the administration of
justice in encouraging victims to bring forward protective
It will now be interesting to see the reach of this decision on
other privacy-related claims. To what extent will adult victims be
entitled to similar protections when facing online defamation or
harassment? Is this part of a trend to facilitate the
identification of wrongdoers in the cyber-sphere? Could this extend
even into commercial contexts such as intellectual property
1 A.B. v Bragg Communications Inc., 2012 SCC 46
2 Respectful and Responsible Relationships:
There's no App for That: Report of the Nova Scotia Task Force
on Bullying and Cyberbullying (2012) at 4, 11-12, cited in at paras
3 Bragg, para 2.
4 Canadian Newspapers Co v Canada (Attorney
General),  2 SCR 122
5 Bragg, para 28.
6 Bragg, para 30.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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