'Sexualized online bullying' through an equality lens: missed opportunity in AB v. Bragg?

AuthorBailey, Jane

In AB v. Bragg, the Supreme Court of Canada ruled that fifteen-year-old AB should be allowed to use a pseudonym in seeking an order to disclose the identity of her online attacker. By framing the case as one pitting the privacy interests of a youthful victim of sexualized online bullying against principles protecting the free press and open courts, the SCC approached but ultimately skirted the central issue of equality. Without undermining the important precedent that AB achieved for youthful targets of online sexualized bullying, the author explores the case as a missed opportunity to examine the discriminatory tropes and structural inequalities that undergird the power of this kind of bullying. Viewed through an equality lens, enhanced access to pseudonymity for targets is not necessarily about privacy per se, but rather an interim measure to respond to the equality-undermining effects of sexualized online bullying--a privacy mechanism in service of equality.

Dans AB c. Bragg, la Cour supreme du Canada a statue que AB, age de 15 ans, avait le droit d'utiliser un pseudonyme pour demander une ordonnance de divulgation de l'identite de son agresseur en ligne. En voyant dans l'affaire un conflit entre le droit a la vie privee d'un jeune victime de la cyberintimidation sexualisee, et les principes de la liberte de la presse et du droit a la publicite des debats judiciaires, la CSC a aborde la question mais a contourne finalement la question centrale de l'egalite. Sans ignorer le precedent important que la Cour a rendu pour proteger les jeunes qui sont cibles par l'intimidation a caractere sexuel en ligne, l'auteure envisage l'affaire comme une opportunite manquee d'examiner le langage discriminatoire et les inegalites structurelles qui soustendent la force de ce type d'intimidation. Du point de vu de legalite, un acces elargi a l'utilisation d'un pseudonyme pour des jeunes cibles ne concerne pas forcement la vie privee comme telle, mais est plutot une mesure provisoire pour repondre aux effets de l'intimidation a caractere sexuel en ligne qui minent l'egalite, c'est-a-dire un mecanisme de la vie privee au service de l'egalite.

Introduction I. Background II. Judgments Below A. First Instance and Costs Decisions of the Nova Scotia Supreme Court B. Decision of the Nova Scotia Court of Appeal 1. Parens patriae 2. Proof of a Serious Risk of Harm III. Analysis of the Supreme Court Decision A. The Harm to AB's Piracy B. The Open Court Principle IV. Locating "Sexualized Online Bullying" in Structural Inequality A. Equality Analyses that Could Have Been Advanced 1. Age 2. Sex 3. Sexual Orientation B. Why Wasn't Equality Raised? C. What Difference Could an Equality Analysis Hive Made? Conclusion Introduction

In 2010, fifteen-year-old AB was targeted by a fake Facebook profile that an unknown person created about her. The fake profile not only used a variation on AB's name, but also included a photo of her and purported to discuss her allegedly preferred sexual acts, as well as her appearance and weight. AB asked the Nova Scotia Supreme Court (NSSC) to order the Halifax-based Internet service provider (ISP) Bragg Communications Inc. (Bragg) to disclose customer information related to the Internet Protocol (IP) address from which the fake Facebook profile originated. AB also asked to be allowed to proceed with her disclosure application using a pseudonym and requested a ban on the republication of the sexualized attacks made in the fake profile (together, the "publicity-related requests"). Two media representatives, the Halifax Herald Limited (Herald) and Global Television (Global), intervened to oppose her publicity-related requests.

At first instance, Justice LeBlanc ordered Bragg to release the subscriber data sought, but denied AB's confidentiality and partial publication ban requests. (1) In a subsequent judgment, he granted the requests from the Herald and Global for costs, ordering AB to pay $1,500 to the Herald and $750 to Global. (2) The Nova Scotia Court of Appeal (NSCA) unanimously dismissed AB's appeal (per Justices MacDonald, Saunders, and Oland) and again ordered costs in favour of the Herald and Global. (3) AB was partially successful on appeal to the Supreme Court of Canada, which granted her confidentiality request and overturned the cost orders made by the courts below, but denied her partial publication ban request and declined to make any award of costs in relation to the appeal before it. (4)

The Supreme Court's decision to grant AB's confidentiality request turned on the importance of protecting children, privacy, and access to justice in cases in which young victims seek legal redress for "sexualized online bullying". (5) From that perspective, it represents an important step forward for children seeking legal remedies in an era permeated by widespread technologized dissemination of information, misinformation, and reputational attacks. However, my focus here is on something that was not said in this case. Remarkably, given the Supreme Court's focus on the sexualized nature of the attacks, the result in AB was achieved without a single reference to "equality" in any of the twelve facta filed on the appeal to that Court, nor in any of the decisions written by the NSSC, the NSCA, or the Supreme Court. In this case comment, I explore the case as a missed opportunity to: (i) contextualize "sexualized online bullying" (6) within a framework of structural inequality that disproportionately exposes girls, women, and all members of the LGBTQ community to sexualized attack; and (ii) conceptualize an equality-enhancing role for privacy as an interim response to conditions of substantive inequality. Moreover, I suggest the case is symbolic of a larger individuated discourse around bullying that too often neglects the role of structural inequality.

Parts I and II explore in detail the factual background and judicial decisions leading up to AB's appeal to the Supreme Court in order to emphasize both the nature of the online attack at issue and the range of liberties at stake, including freedom of the press, freedom of expression, the open court principle, and privacy. Part III details the Supreme Court decision, focusing on the careful attention paid to child protection and to a largely negative and individuated conception of privacy, and noting the absence of an equality argument. Part IV locates sexualized online bullying within the framework of structural inequality, suggesting not only the central role that equality analysis should play in cases of "online sexualized bullying" (and could play in future cases with respect to many forms of discriminatory online harassment), but also the equality-affirming role that privacy might have played in the case. The conclusion reflects upon the important role that equality should play, not only in future legal cases involving sexualized online bullying, but also in the larger discourse around bullying and cyberbullying.

  1. Background

    In March 2010, fifteen-year-old AB discovered that someone had created a fake Facebook profile using a photo of her and a slightly modified version of her name. The fake profile discussed AB's appearance and weight (7) and also included explicit references to AB's allegedly preferred sexual acts. Someone who had received a friend request from the fake profile forwarded it to AB. AB printed the request and showed it to her father, CD. AB and CD later learned that the fake profile had been taken down. They retained counsel, who obtained from Facebook the IP address from which the fake profile had originated. (8) The IP address was allocated to Bragg, an ISP in Dartmouth, Nova Scotia, doing business under the name Eastlink. Counsel for Bragg indicated that they would not release customer information relating to that IP address without a court order.

    In May 2010, AB, through her litigation guardian CD, filed a notice of application in the Nova Scotia Supreme Court for an order compelling Bragg to disclose the customer information relating to the IP address provided by Facebook, hoping that this information would assist her in identifying the person who had posted the fake profile. In addition, she requested that the NSSC allow her disclosure application to proceed under pseudonyms for both herself and her father (the "confidentiality request"), and that the court issue an order prohibiting publication of the words used in the fake profile (the "partial publication ban request"). The thrust of AB's argument was that if these words were republished, she would once again be exposed to the humiliating impact of the defamatory sexualized attack.

    Pursuant to the Nova Scotia Civil Procedure Rules, (9) the media received abridged notice of AB's publicity-related requests. Upon receiving this notice, the Herald and Global sought leave to intervene to oppose those requests. (10) Bragg did not appear and took no position with respect to AB's application. Only AB and the Herald appeared at the initial chambers hearing, which was adjourned to grant AB time to file supplementary materials relating to the publicity-related requests. The adjournment also allowed Global sufficient time to file its own brief, so that both the Herald and Global appeared at the subsequent continuation of the hearing, again, not to oppose AB's application for disclosure, but to oppose the publicity-related requests. (11)

  2. Judgments Below

    1. First Instance and Costs Decisions of the Nova Scotia Supreme Court

      Justice LeBlanc of the Nova Scotia Supreme Court heard AB's application for disclosure and her publicity-related requests over the course of three days in May 2010 and rendered a decision early in June 2010. Justice LeBlanc permitted AB's motion to abridge the notice period in relation to her application. (12) The court had little trouble finding that AB's application for disclosure of customer information should be granted, even taking into account the possible...

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