Supreme Court rules privacy interest of minors trumps freedom of the press in cyberbullying case  


October 2012

Litigation Bulletin

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 interest in the freedom of the press, Abella J. acknowledged the constitutional protections in favour of the press and in favour of open court. She tempered these considerations by referring to the Canadian Newspapers Co4 decision that the harm caused by prohibiting the media from disclosing a person's identity is minimal, and that the identity of the person is a mere "sliver of information".5

A careful balance was struck. The Court allowed the girl to proceed anonymously with her attempts to identify the cyberbully. However, the Court concluded that there was "little justification for a publication ban on the non-identifying content of the fake Facebook profile."6

The Supreme Court's decision is grounded in the evidence that cyberbullying presents a risk to children who are all inherently vulnerable, regardless of individual temperament. Preventing disclosure of victims' identities promotes the reporting of harmful activity and enhances the administration of justice in encouraging victims to bring forward protective claims.

It will now be interesting to see the reach of this decision on other privacy-related claims. To what extent will adult victims be entitled to similar protections when facing online defamation or harassment? Is this part of a trend to facilitate the identification of wrongdoers in the cyber-sphere? Could this extend even into commercial contexts such as intellectual property violations? 

by Jonathan O'Hara and Monica Podgorny, articling student

1 A.B. v Bragg Communications Inc., 2012 SCC 46 [Bragg].

2 Respectful and Responsible Relationships: There's no App for That: Report of the Nova Scotia Task Force on Bullying and Cyberbullying (2012) at 4, 11-12, cited in at paras 20-22.

3 Bragg, para 2.

4 Canadian Newspapers Co v Canada (Attorney General), [1988] 2 SCR 122

5 Bragg, para 28.

6 Bragg, para 30.  

a cautionary note  

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2012