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...