Anti-bullying advocates will applaud a recent Supreme Court of
Canada decision that paves the way to give young victims of online
bullying stronger legal rights. The case of A.B. v Bragg Communications Inc. is
notable as it directly pits society's interest in the
protection of children from cyberbullying against freedom of the
press and the open court principle.
The facts of the case are straightforward. A 15-year old Nova
Scotia girl, identified only as A.B., discovered that someone had
created a phony Facebook profile using her name and picture. The
picture was accompanied by some unwelcomed commentary about the
girl's appearance along with sexually explicit references. A.B.
applied to a Nova Scotia court for an order requiring Eastlink, an
internet service provider, to disclose the identity of the
person(s) standing behind the IP address used to publish the phony
Facebook profile. In order to protect her privacy, A.B. also asked
the court for permission to make her application anonymously and
for a publication ban on the contents of the fake Facebook profile.
Her request to proceed anonymously and under a publication ban were
denied by the trial judge and the Court of Appeal but those
decisions were partially overturned in this case by the Supreme
Court of Canada.
In reaching its decision to allow A.B. to proceed both
anonymously and under partial publication ban, the Supreme Court
carefully considered the impact such a decision would have on the
open court principle—the idea that court proceedings should
be open and accessible to the media and the public. While it was
observed that this principle is a "hallmark of a democratic
society" and is "inextricably tied to freedom of
expression," the Court held that the privacy and protection of
children from cyberbullying must ultimately prevail because the
serious harm in failing to protect young victims of bullying
through anonymity outweighs the minimal harm to press freedom.
The Court's conclusion on this point was buttressed by a
report on bullying and cyberbullying, which noted that "The
immediacy and broad reach of modern electronic technology has made
bullying easier, faster, more prevalent, and crueller than ever
before." Equally unsettling for the Court was the fact that,
without anonymity, children might shy away from pursuing responsive
legal action out of embarrassment or fear of retaliation. Finally,
the Court noted that a victim's identity constituted only a
"sliver of information" and that any restriction on
freedom of the press and the open court principle was thus
"minimal". For these reasons, The Court found that A.B.
could proceed anonymously and with a publication ban covering the
identity-revealing content of the phony Facebook profile.
This case demonstrates that freedom of the press and the open
court principle are not absolute rights and that the privacy and
protection of children from cyberbullying will prevail over press
freedom in cases such as this one.
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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