“Cyber-bullying” is the act of bullying someone using the means of the internet. It has garnered much attention lately as a cause of various harmful consequences to young people, including increased rates of suicide among victims. In reasons for judgment issued today, the Supreme Court of Canada addressed questions relating to whether a victim of cyber-bullying who seeks to pursue a defamation claim against the perpetrator may remain anonymous in doing so; and whether a publication ban should be imposed in such cases in A.B. v. Bragg Communications Inc., 2012 SCC 46 (“Bragg”).
In Bragg, a 15-year old girl discovered that someone had created a fake Facebook profile using her picture, a modified version of her name, other particulars identifying her, and including unflattering commentary about her appearance and explicit sexual references. Through her father as guardian, the girl eventually applied for a court order requiring an internet service provider (ISP) to disclose the identity of the creator of the Facebook page. She also asked the court for permission to seek the identifying information anonymously and for a publication ban on the content of the fake Facebook profile. Two media outlets opposed the anonymity and publication ban requests. The judge hearing the application allowed disclosure of the identifying information about the creator of the Facebook page, but declined to allow the girl to proceed anonymously or to grant a publication ban. That decision was upheld by the Court of Appeal primarily because “the girl has not discharged the onus of showing that there was real and substantial harm to her which justified restricting access to the media.”
The Hon. Madam Justice Abella, writing for a unanimous panel of the Supreme Court of Canada, held that both of the courts below had erred “in failing to consider objectively discernable harm to [the girl].” She noted that, “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 logical to infer that children may suffer harm through cyberbullying.” Quoting a government report, she noted that:
“The immediacy and broad reach of modern electronic technology has made bullying easier, faster, more prevalent, and crueller than ever before.
. . . cyber-bullying follows you home and into your bedroom; you can never feel safe, it is “non-stop bullying”. . . . cyberbullying is particularly insidious because it invades the home where children normally feel safe, and it is constant and inescapable because victims can be reached at all times and in all places.
The anonymity available to cyberbullies complicates the picture further as it removes the traditional requirement for a power imbalance between the bully and victim, and makes it difficult to prove the identity of the perpetrator. Anonymity allows people who might not otherwise engage in bullying behaviour the opportunity to do so with less chance of repercussion. . . .
. . . The cyber-world provides bullies with a vast unsupervised public playground . . .”
In addition to these harms, Abella J. noted that the Court “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.” She noted that, “Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities.”
“If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing [the girl’s] anonymous legal pursuit of the identity of her cyberbully.”
On the publication ban request, however, the Court held that once the girl’s “identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile. If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to [the girl]. The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.”
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