A.B. v. Bragg Communications Inc. , 2012 SCC 46, A.B. v. Bragg Communications Inc., 2012 SCC 46, 2012 SCC 46 (2012)

Docket Number:34240
 
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SUPREME COURT OF CANADA

Citation: A.B. v. Bragg Communications Inc., 2012 SCC 46

Date: 20120927

Docket: 34240

Between:

A.B. by her Litigation Guardian, C.D.

Appellant and

Bragg Communications Incorporated, a body corporate, and Halifax Herald Limited, a body corporate

Respondents

- and -

BullyingCanada Inc., British Columbia Civil Liberties Association, Kids Help Phone, Canadian Civil Liberties Association, Privacy Commissioner of Canada, Newspapers Canada, Ad IDEM/Canadian Media Lawyers Association, Canadian Association of Journalists,, Professional Writers Association of Canada, Book and Periodical Council, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Unicef Committee, Information and Privacy Commissioner of Ontario and Beyond Borders

Interveners

Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Karakatsanis JJ.

Reasons for Judgment:

(paras. 1 to 31)

Abella J. (McLachlin C.J. and LeBel, Deschamps, Fish, Rothstein and Karakatsanis JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

a.b. v. bragg communications inc.

A.B. by her Litigation Guardian, C.D. Appellant v.

Bragg Communications Incorporated, a body corporate,

and Halifax Herald Limited, a body corporate Respondents and

BullyingCanada Inc., British Columbia Civil Liberties

Association, Kids Help Phone, Canadian Civil Liberties

Association, Privacy Commissioner of Canada, Newspapers

Canada, Ad IDEM/Canadian Media Lawyers Association,

Canadian Association of Journalists, Professional Writers

Association of Canada, Book and Periodical Council,

Samuelson-Glushko Canadian Internet Policy and Public

Interest Clinic, Canadian Unicef Committee, Information and Privacy Commissioner of Ontario and Beyond Borders Interveners

Indexed as: A.B. v. Bragg Communications Inc.

2012 SCC 46

File No.: 34240.

2012: May 10; 2012: September 27.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Karakatsanis JJ.

on appeal from the court of appeal for nova scotia

Courts - Open court principle - Publication bans - Children - 15-year old victim of sexualized cyberbullying applying for order requiring Internet provider to disclose identity of person(s) using IP address to publish fake and allegedly defamatory Facebook profile - Victim requesting to proceed anonymously in application and seeking publication ban on contents of fake profile - Whether victim required to demonstrate specific harm or whether court may find objectively discernable harm.

A 15-year old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl's appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. 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. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media.

Held: The appeal should be allowed in part.

The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.

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. 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. It is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon. Since children are entitled to protect themselves from bullying, cyber or otherwise, there is inevitable harm to them - and to the administration of justice - if they decline to take steps to protect themselves because of the risk of further harm from public disclosure. Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl's anonymous legal pursuit of the identity of her cyberbully 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. The serious harm in failing to protect young victims of bullying through anonymity, as a result, outweighs this minimal harm. But once the girl's identity is protected through her right to proceed anonymously, there is little justification for a publication ban on the non-identifying content of the profile. If the non-identifying information is made public, there...

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