Supreme Court rules girl can protect her identity in Facebook defamation suit
London Community News
By Tonda MacCharles
OTTAWA—In a ruling that strengthens individual privacy rights of vulnerable minors, a teenaged target of cyber-bullying will be able to protect her identity in a Facebook defamation suit.
The country’s top court said the girl’s name can be kept secret if she wants to continue her lawsuit, but media will not be banned from reporting on potentially damning online content as long as it does not publish any information that could directly identify the victim, the Supreme Court of Canada ruled.
The 7-0 ruling Thursday, written by Justice Rosalie Abella, upheld in part a ruling by the Nova Scotia Court of Appeal and articulated the importance of protecting vulnerable youth in the Internet age.
It likened the protection of children to the principles that guide courts in protecting the identity of sexual assault complainants.
Abella wrote: “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 re-victimization 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 A.B.’s anonymous legal pursuit of the identity of her cyberbully.”
The decision was not based on the “sexualized” nature of the bullying posting, nor on how sensitive an individual child might be.
The court said: “Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law and results in the protection of young people’s privacy rights based on age, not the sensitivity of the particular child.”
The ruling also reinforced the principle of open public court proceedings, however, once the individual’s identifying information is protected.
The case revolved around a young girl known only by her initials A.B. and her attempt to sue her cyber-bully anonymously.
The Supreme Court of Canada accepted the harm of “sexualized cyber-bullying” in an age where information “can be spread widely, quickly and anonymously.”
It also accepted studies and research that showed the harm to young victims of cyberbullying include “loss of self-esteem, anxiety, fear and school drop-outs.” Abella cited a report that showed “moreover, victims of bullying were almost twice as likely to report that they attempted suicide compared to young people who had not been bullied.”
Because of that, Abella wrote victims have the right to pursue justice without having to disclose their identity, which could “exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities.”
Nevertheless, the court ruled “the public’s right to open courts — and press freedom — prevail with respect to the non-identifying Facebook content.”
In 2010, the girl who was then 15, learned somebody had posted a fake Facebook profile using her photo, with only a slight variation on her name. It gave her weight, height and outlined what a lower court judge called “scandalous” highly-sexualized activity.
It was sent to her by someone she knew. The Facebook profile was taken down quickly, and her father hired lawyer to determine who was behind it.
Facebook revealed to them the IP or Internet Protocol address — the unique identifier assigned to computer accounts — which was operated by a Maritime company, Eastlink, owned by Bragg Communications.
Bragg agreed to provide the family with the IP owner’s identity if served with court order, and so A.B.’S father sought a disclosure order in the N.S. Supreme Court.
In a “pre-action discovery,” the father asked to pursue the girl’s defamation claim using her initials only and sought a publication ban on the fake Facebook content.
Two media organizations, Global television and the Chronicle-Herald, opposed it. The media won in the lower courts.
The trial judge Arthur Leblanc said it was important that the public know what goes on in court, and that public interest was not outweighed in this case because the girl’s lawyers hadn’t brought evidence of specific harm to the girl to persuade the court her privacy interest outweighed the public interest in a free press and open courts.
The province’s appeal court agreed, saying a successful defamation claim is all about publicly clearing of one’s name and reputation.
Canadian court proceedings and records are generally open to the public, and media are free to report what happens.
But bans, sealing orders and closed proceedings are allowed in certain circumstances, either under Criminal Code provisions to protect evidence, national security, or if the administration of justice requires it, for example to protect vulnerable witnesses.
Judges are to balance the competing interests under what’s known as the Dagenais-Mentuck test.
The Supreme Court of Canada said Friday each and every child doesn’t have to prove particular harm in order to protect their identity.
- Torstar News Service