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.

FACTS

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'S DECISION

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.

IMPLICATIONS OF THIS DECISION IN THE SCHOOL CONTEXT

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.

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