Case Summary and Outcome

The Crown appealed for a publication ban on the contents of a fake profile and to proceed anonymously in an application for an order that required the internet provider to reveal the identity of person(s) using an IP address to publish fake Facebook profile of the appellant. The Supreme Court of Canada found that the appeal should be allowed in part and allowed the appellant to remain anonymous in her application, but would not ban the publication of the part of the fake Facebook profile that contains no identifying information.The supreme Court also stated that they “would set aside the costs orders against A.B. in the prior proceedings but would not make a costs order in this Court.” [para.31]

Facts

On March 4, 2010 a fifteen year old girl (referred to as A.B.) discovered that a person had used her picture, a similar version of her name, and other identifiers, to create a Facebook profile (that was removed by the internet provider later that month) of the girl. In addition, the photo included sexually explicit commentary as well as disrespectful opinions about A.B.’s physical appearance.

Once notified of the situation, Facebook’s legal team in Palo Alto, California provided the IP address (which was an “Eastlink address” located in Dartmouth, Nova Scotia) that was associated with the account once they were aware of the situation. Through more research, it was confirmed that the respondent Bragg Communications, a provider of internet and entertainment services in Atlantic Canada, owned Eastlink.

Eastlink’s agreement to give more precise knowledge about the address if the court allowed them to resulted in A.B., through her father as guardian, bringing a preliminary application under Nova Scotia’s Civil Procedure Rules, N.S. Reg. 370/2008 for an order that required Eastlink to disclose the identity of the person(s) who used the IP address to publish the profile to assist her in identifying those who defamed her. A.B. stated in her Notice of Application that she had “suffered harm and seeks to minimize the chance of further harm” (A.R., at p. 98). A.B. sought permission from the court in her application find out who published the fake profile anonymously, for a publication ban on the fake Facebook profiles content, and did not ask that the hearing be recorded.

Eastlink did not oppose A.B.’s motion and when notice of the request for a publication ban appeared as an automatic advisory on the Nova Scotia publication ban media advisory website, the Halifax Herald and Global Television became aware of her application.Herald and Global Television notified the court that they were against both of A.B.’s requests.

The court granted the order that required Eastlink to divulge the information on the publisher of the Facebook profile on since a prima facie case of defamation had been determined and this was the only way to identify the person(s) who defamed A.B.The court however, rejected the request for anonymity and the publication ban since it concluded that there was not enough proof of a specific harm to A.B.

The judge required Eastlink to reveal the publisher’s identity until a successful appeal allowed A.B. to proceed anonymously or A.B. filed a draft order reveal her and her father’s true identity. The Court of Appeal upheld the judge’s decision because A.B. had not discharged the onus of showing that there was real and substantial harm to her that justified restricting access to the media.

Decision Overview

Although, the Supreme Court of Nova Scotia granted the request that the internet provider reveal who published the profile, they denied the request that A.B. and her father remain anonymous and the publication ban because there was not enough evidence of the specific harm that the girl suffered. “The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father’s real names.” [pg.568] The Court of Appeal upheld the decision of the lower court because A.B. had not discharged the onus of showing that there was evidence of harm to her which needed media access to be restricted.

The Supreme Court held that part of the appeal should be allowed. The Supreme Court stated that the open court principle and free press are very important in the law, but in this case the interests (privacy and the protection of children from cyber bullying) are important enough to restrict the free press and the open court principle. The Supreme Court noted that the law recognizing children’s vulnerable nature is very Canadian and ends up protecting the privacy rights of young people and these rights are based on age and not the sensitivity of the child.” In an application involving cyberbullying, there is no need for a child to demonstrate that he or she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament. While evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm.” [pgs.568-69]

The Court stated that children can suffer psychological harm through cyber bullying and they are entitled to protect themselves from any type of bullying. Further,  the children and the administration of justice will be harmed if children neglect to defend themselves from bullying because of the fear that public disclosure may cause more harm.

The Supreme Court mentioned that young victims of sexualized bullying were susceptible to the consequences of re-victimization upon publication of their bullying experience, and since the right to protection will disappear for most children without being anonymous, the further protection of anonymity, A.B.’s legal pursuit to discover the identity of her cyberbully while remaining anonymous, should be allowed.

In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, “prohibiting identity disclosure was found to represent only minimal harm to press freedom.” [1] The Supreme Court believed that the harm of failing to protect child victims of bullying through anonymity outweighed the minimal harm to freedom of the press that was mentioned earlier. The Supreme Court decided that once A.B.’s is allowed to proceed anonymously, there was little reason for a publication ban on the content on the Facebook profile that did not identify A.B. The Supreme Court reasoned that if the information was publicized then there wold be no harm to A.B. since the information wold not identify her. The court stated that the public’s right to open courts — and freedom of the press, would prevail with respect to publishing the non-identifying Facebook content.

[1]Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122