Recently Canada is engaged in national dialogue about online bullying in the wake of Amanda Todd’s suicide. One aspect being discussed is what role the law should play in protecting victims of bullying. Should new legislation be enacted, like the NDP’s proposal for a national anti-bullying strategy or should changes to the law be left to the courts?
In late September the Supreme Court of Canada released AB v Bragg Communications Inc, 2012 SCC 46, rev’d 2011 NSCA 26, rev’d 2010 NSSC 215 in which a teenager sought to unmask her cyberbullies in order to pursue a defamation action, while preserving her own anonymity. At issue was the appropriate balance between the freedom of the press and open court principles on the one hand, and privacy and protecting children from cyberbullying on the other. This case is a good overview of what legal recourses are currently available to victims of online bullying and outline some of the difficulties they face in pursuing them.
In 2010, at age 15, A.B. discovered someone had created a fake Facebook profile of her, with a modified version of her name, a picture of her and other identifying details. On the profile were disparaging comments on her physical appearance as well as intimate and sexually explicit remarks. Within the month, the profile was taken down (interestingly, none of the judgments explain how this was done).
A.B., along with C.D., her father as litigation guardian, brought an application under Nova Scotia’s Civil Procedure Rules, NS Reg 370/2008 for an order for the internet service provider Eastlink to disclose the identity associated with the IP address which had created the fake profile in order to bring an action for defamation. Facebook had already supplied the IP address that created the profile and A.B. now sought to link it to an individual. This type of discovery mechanism is similar to the common law order outlined in Norwich Pharmacal Co v Comrs of Customs and Excise,  AC 133 (HL) (discussed by IP Osgoode here and here). For the order to be granted, the plaintiff must establish a prima facie defamation case.
In addition to the disclosure order, A.B. also requested a publication ban on the contents of the profile and her name. Eastlink, which is owned by Bragg Communications, did not oppose the motion at any level of trial. However, the publication ban caught the attention of The Halifax Herald and Global Television who intervened in opposition of the publication ban on the basis of the open court principle and freedom of expression. The trial judge found that A.B. had established a prima facie defamation case but he stayed the disclosure order until A.B. used her real name or an appeal allowed her to proceed anonymously. He reasoned that a publication ban would limit public awareness about the bullying that occurs on social networks and only an informed public can demand an issue be addressed. Furthermore, A.B. did not show that she would be specifically harmed by publication, especially since the profile had since been taken down [31-37]. The Court of Appeal agreed and focused on how defamation is an action for damage to the plaintiff’s reputation and the public nature of the action is part of how a reputation is restored and anonymity would be incompatible with this process [80-85].
Justice Abella, writing for a unanimous Supreme Court, found that when balancing between the open court principle and the privacy rights of A.B., harms to children can be determined objectively in the context of sexualized cyberbullying. This overturned the previous rulings which required that A.B. discharge the onus to demonstrate she would be specifically harmed by publication. The court had no trouble inferring that cyberbullying is harmful . In doing so, the court lowered the burden of a plaintiff trying to unmask a bully. Having found that preserving A.B.’s anonymity was minimally intrusive upon freedom of expression, the Supreme Court did not find it necessary to keep the contents of the Facebook profile from publication provided it was not linked to A.B.
On balance, the court focused on the special circumstances of children who are bullied anonymously online and made it slightly easier for them to unmask their tormentors without fear of having to relive the bullying through the media coverage linked to their name. The court rightly focused on how the ability to proceed anonymously would increase the likelihood of a child protecting him or herself using the court system .
Even though the court lightened the burden of a young plaintiff seeking redress against cyberbullying, this case highlights the limits of the law. To respond to a Facebook profile created in minutes, the victim has no recourse to unmask their tormentor faster than the court system, which gets there, but not quickly—in this case about two and a half years.
Kalen Lumsden is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students are asked to write a blog on a topic of their choice.