Canada: Supreme Court Of Canada Recognizes The Negative Impact Of Cyberbullying

On Thursday, September 27, 2012, the Supreme Court of Canada released its decision in A.B. v. Bragg Communications Inc., 2012 SCC 46 ["Bragg"], in which it affirmed the right of a minor to pursue her cyberbully anonymously. The decision represents a significant legal pronouncement on the nature and effects of cyberbullying, underscoring, in the Court's words, "the psychological toxicity" of the phenomenon.


The case involves a 15-year-old Nova Scotia girl ("A.B."), who launched a defamation suit after someone posted a fake Facebook profile using her picture, a slightly modified version of her name, and unflattering and sexually explicit commentary about her appearance. Acting through her father as guardian, A.B. brought an application for an order requiring Eastlink, the internet provider in question, to disclose the identity of the individual(s) who used the IP address to publish the profile. A.B.'s application requested that she be allowed to seek the identity of the creator of the profile anonymously, and that a publication ban be ordered in relation to the content of the profile. Global Television and the Halifax Herald opposed the publication ban and the requests for anonymity on the basis that they unreasonably restricted the open court principle and freedom of the press.

The lower court granted an order requiring Eastlink to disclose the information about the publisher of the fake Facebook profile, on the basis that a prima facie case of defamation had been established, and there were no other means of identifying the person who published the profile. However, the Court denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to A.B. The decision was upheld by the Court of Appeal primarily on the ground that the girl had not discharged the onus of showing that there was real and substantial harm to her which justified restricting access to the media.


The Supreme Court of Canada ruled that both courts had failed to consider the objectively discernible harm to A.B. The Court held that A.B. should be entitled to proceed anonymously, but stated that there was no basis for a publication ban on the non-identifying content of the fake Facebook profile.

Abella J., writing for a unanimous court, noted that, although the principles of a free press and an open court have been tenaciously embedded in the Canadian jurisprudence, the privacy and protection of children from cyberbullying were sufficiently compelling interests to justify restricting these principles. Abella J. likened these interests to the privacy and safety interests of sexual assault complainants, which the Supreme Court of Canada has already upheld as a justified restriction on the freedom of the press principle.

In addressing the lower courts' failure to consider the objectively discernible harm to A.B., Abella J. noted that in an application involving sexualized cyberbullying, there was no need for a child to demonstrate a particular vulnerability or harm resulting from cyberbullying, since the law attributes a heightened vulnerability to all children. Abella J. further noted that it is now "common sense" that children who have been subjected to bullying will suffer "inevitable harm".

Perhaps the most significant factor in the court's decision to grant A.B.'s request for anonymity was the finding that bullied children who are not able to report bullying anonymously tend not to report bullying at all. The court referred at length to "Respectful and Responsible Relationships: There's No App for That: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying" (2012) (the "Report"), chaired by Professor A. Wayne MacKay, which drew a similar conclusion on the issue earlier this year. Abella J. relied, in particular, on the Report's findings that the choice not to report bullying exacerbates the long-term toxic effects of bullying, which include loss of self-esteem, anxiety, fear, school drop-outs, and suicide attempts. Abella J. noted that granting A.B. the right to proceed anonymously would be consistent with one of the Report's recommendations that mechanisms must be developed to allow victims to report cyberbullying anonymously. Abella J. further stated:

In addition to the psychological harm of cyberbullying, we must consider the resulting inevitable harm to children – and the administration of justice – if they decline to take steps to protect themselves because of the risk of further harm from public disclosure.

As such, the Court proceeded to grant A.B. the right to seek out her cyberbully anonymously, but declined to order a publication ban on the non-identifying content of the fake Facebook profile on the basis that this information could not be connected to A.B., and publishing it would not have a harmful impact.


The Bragg decision is an important affirmation of the prevalence of cyberbullying, and the need to provide students with the privacy and protections to feel safe enough to address this form of bullying. According to UNICEF Canada, of Canadian children and young people who report that they have been bullied, 27% say they were bullied over the internet. One of the difficulties with addressing cyberbullying relates to the fact that cyberbullies are able to communicate to wide audiences without taking ownership of their actions, or fearing being identified or punished. The Court's affirmation in Bragg that a student can pursue the identity of a bully anonymously acknowledges and attempts to address these difficulties.

Bragg also comes in the context of a number of recent legislative efforts at increasing awareness and prevention of cyberbullying, and bullying in general. As of September 1, 2012, the Ontario Accepting Schools Act, 2012 (Bill 13), amended the Education Act to codify, for the first time, a definition of "cyberbullying", and recognized a notably wide range of harm which flows from incidents of cyberbullying. Bill 13 also affirmed school administrators' and boards' duty to investigate, identify and address cyberbullying where a sufficient nexus between the act of cyberbullying and a negative impact on the school climate is found.

The imposition of school discipline for acts of cyberbullying depends on the existence of sufficient evidence that the online threat or intimidation was initiated by a particular identifiable student. Therefore, while the Bragg decision encourages victims of cyberbullying to seek out their bullies, it will also likely make it easier for school administrators to obtain the evidence necessary to apply appropriate discipline.

Cyberbullying, and bullying in general, is often linked to the victim's race, sexual orientation, or another enumerated ground under the Ontario Human Rights Code. Notably, the Court's decision affirms bullying as an independent source of injury, regardless of whether the bullying or cyberbullying is related to a prohibited ground, and legitimizes the victim's experience of harm from the act of bullying itself.

The Court's decision to grant A.B. anonymity affirms the fact that providing victims of cyberbullying with the legal mechanisms to seek out their bullies is a significant aspect of a holistic approach to combating bullying. Of course, this type of approach also requires school administrators to continue to play a proactive role in preventing and addressing bullying by implementing anti-bullying policies and providing appropriate supports to both victims and the students who engaged in bullying.

About BLG

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions