On 27 September 2012 the Supreme Court of Canada released its decision A.B. v. Bragg Communications (2012 SCC 46) a case which deals with the balance between the open courts principle, privacy, and the rights of children.  The Court permitted a teenager to proceed anonymously in her application to find out the identity of her alleged cyberbullies.  The Court did, however, deny her application for a broader publication ban.

Since at least the hallmark Dagenais case in 1994, Canadian law has had a strong presumption in favour of open courts.  This decision suggests that this presumption may be reversed in certain kinds of cases.  There is no question, however, that this case raised unique facts, with a particularly sympathetic applicant and a hot-button issue in cyber-bullying that educators, politicians, and even judges have been struggling with.  The question going forward is whether the Court bent its own rules to deal with the facts before it, or whether we have seen a significant shift in how Canadian courts protect the open courts principle.

In March 2010, someone posted a Facebook profile using A.B.’s picture and a slightly modified version of her name.  The profile contained a number of sexually-explicit statements about A.B and some unflattering commentary about her appearance.  She now wants to find out who posted the fake profile in order to sue them for defamation.  Although she was able to obtain the IP address used to post the profile, the internet service provider associated with that IP address has refused to identify its owner without a court order.

A.B. tried to obtain that order anonymously, as well as a publication ban over the contents of the fake profile.  She did not file any evidence that disclosure of this information would cause her harm, however.  Both the trial court and the Nova Scotia Court of Appeal rejected her application, holding that the open courts principle could not be curtailed without specific evidence of harm.

In the past, the Supreme Court of Canada has also held that any justification for limiting the open-courts principle must be “well-grounded in the evidence.”  Here, however, a unanimous court weakened that requirement, writing that “while evidence of a direct, harmful consequence to an individual application is relevant, courts may also conclude that there is objectively discernable harm.

Relying on social science evidence as well as the law’s more general recognition of the inherent vulnerability of children, the court accepted based on “common sense and the evidence” the harm caused by publicizing the fact that someone has been a victim of cyberbullying – and the suggestion that fear of publicity could dissuade victims from seeking help.  As result, “in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she personally conforms to this legal paradigm.  The law attributes this heightened vulnerability based on chronology, not temperament.”

The Court then balanced this against the harm that anonymity would cause to the open courts principle and freedom of the press.  In contrast to a number of recent decisions of the U.K. Supreme Court (see, for instance, Re Guardian News and Media Ltd, [2010] UKSC 1 at [63-65]), the Court held that the harm caused by withholding a litigant’s name is “minimal,” as long as the media is free to report other information.  It did not address the unique context here, where the application is closely connected to a future defamation action – a tort closely tied to public vindication.

A.B. also sought a publication ban over the contents of the fake profile.  Because this information did not identify her, the Court ruled that such a ban was unnecessary.

It is too early to say whether the Court’s willingness to presume harm without direct evidence has broad ramifications.  If nothing else, though, its perfunctory rejection of the importance of reporting names suggests that anonymity may become more common before Canadian courts in coming years.  To use memorable phrase adopted by Lord Rodger in the Re Guardian case, we may be heading towards justice by “alphabet soup.”

Paul Schabas and Adam Lazier of Blake, Cassels & Graydon LLP, Toronto and Vancouver, Canada. 

Adam Lazier was counsel (with Ryder Gilliland) to a coalition of media organizations intervening at the Supreme Court of Canada.

The Supreme Court hearing was discuss in Kirsten Sjøvoll‘s Inforrm post “Cyber Bullying, Defamation, and the Right to Remain Anonymous: AB v Bragg Communications before the Canadian Supreme Court”