Supreme Court Rules Privacy Interest Of Minors Trumps Freedom Of The Press In Cyberbullying Case

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 Appeal.

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 publication".3

In favour of the public's...