SCC guarantees anonymity in Facebook cyberbullying case

In a highly anticipated ruling involving a fake Facebook profile of a Nova Scotia girl, the Supreme Court of Canada has sided with the victim, ruling that it is of the utmost importance to protect young victims of cyberbullying.

The 15-year-old victim, identified only as A.B., discovered on March 4, 2010 that someone had created a fake Facebook profile of her using her photo, which also had “unflattering commentary about the girl’s appearance along with sexually explicit references.”

Through her father, identified as C.D., the girl applied for an order to require Internet service provider Eastlink, which is owned by Bragg Communications Inc., to reveal the identity of the person(s) who used the IP address to post the profile.

A.B. requested that she remain anonymous and for the court to impose a publication ban on the content of the profile.

Upon discovery of this request, the Halifax Herald and Global Television opposed the publication ban and A.B.’s right to proceed anonymously.

In A.B. v. Bragg Communications Inc., Supreme Court of Nova Scotia Justice Arthur J. LeBlanc ordered Eastlink to disclose the information about the publisher of the profile on the basis that a prima facie case of defamation had been established and there were no other means to identify the publisher. However, he did not grant anonymity or a publication ban due to insufficient evidence of specific harm to A.B.

LeBlanc then stayed the part of his order requiring Eastlink to reveal the publisher’s identity until A.B. obtained a successful appeal to proceed anonymously or if she agreed to use her and her father’s real names.

The Nova Scotia Court of Appeal upheld this decision on the ground that A.B. did not demonstrate significant harm to her to justify restricting access to the media.

Both courts awarded costs in favour of the Halifax Herald and Global Television.

In today’s ruling, Supreme Court of Canada Justice Rosalie Abella, writing on behalf of the bench, partially disagreed with the two lower court rulings.

“In my view, both courts erred in failing to consider the objectively discernable harm to A.B. I agree with her that she should be entitled to proceed anonymously, but once her identity has been protected, I see no reason for a further publication ban preventing the publication of the non-identifying content of the fake Facebook profile,” she wrote.

Michelle Awad, co-counsel for A.B., says the top court’s ruling sets a precedent for all child victims of cyberbullying. “[The ruling] basically says that when a child is a victim of cyberbullying, they can take whatever steps are necessary to identify the bully without having to have their own identity known. So that, prior to now, had not been established,” she says.

Jane O’Neill, also co-counsel for A.B., says the ruling shows that the court is in tune with the reality of cyberbullying.

“It’s a good recognition by the court of the reality now for kids that with the Internet, bullying is immediate, wide-reaching, and permanent. So it’s not the same as your schoolyard bully,” she tells Legal Feeds.

Abella made this point clear when she wrote: “The girl’s privacy interests in this case are tied both to her age and to the nature of the victimization she seeks protection from. It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying.”

The decision also states that it’s important for young victims of cyberbullying to remain anonymous so that they feel safe in coming forward.

Awad wholeheartedly agrees: “There’s absolutely no reason why the public needs to know who this particular young girl is. She is one of many cyberbullying victims and given that she falls within the class in our society that has been found at law to be vulnerable and deserving of protection, there’s no need to know her name.”

She also argues that anonymity will protect A.B. from further victimization. “She was already the victim of this horrible bullying, and didn’t want to be further victimized through re-publication of the disgusting remarks associated with her name. So it’s important for her to be able to proceed anonymously in order to eliminate — or at least hopefully reduce as much as we can — the risk of further harm, given her vulnerability,” she says.

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