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John McKiggan Q.C.
John McKiggan Q.C.
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Supreme Court of Canada Strikes a Blow Against Cyberbullying

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Court Protects the Privacy Rights of Children

This morning the Supreme Court of Canada (SCC) released an important decision that helps protect children’s privacy rights and acknowledges the harm that Cyberbullying can cause.

A.B. v. Bragg Communications Inc

The complainant in the case, a teenage girl was victimized on Facebook (FB). A cyberbully created a fake FB profile using the victim’s name, picture and other personal details identifying her. The profile included insulting comments about A.B.’s appearance as well as a number of sexually explicit references.

The teen, through her parents, requested that the Internet Service Provider (Eastlink, owned by Bragg Communications) provide the identity of the person that created the fake FB profile (so that the cyberbully could be named in a defamation lawsuit).

Victim Requested Privacy

In her application for the identity of the cyberbully, A.B. requested that the court allow the court application to proceed anonymously.

Media Opposed

CBC reported that The Halifax Herald and Global Television opposed A.B.’s requests to proceed anonymously, and opposed her request that the details of the alleged defamatory statements on the fake FB page be subject to a publication ban.

The trial judge sided with the teen and allowed the publication ban. The Nova Scotia Court of Appeal agreed. The media appealed the issue all the way to the Supreme Court of Canada.

Supreme Court of Canada Sides with Vulnerable Children

In the decision, Abella J. writing for the Court states:

“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 revictimization 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. " [Emphasis added]

Personal Details Banned

In the final order, the SCC has allowed A.B. to proceed anonymously in her application to require Eastlink to disclose the identity of the cyberbully. But the SCC refused to go so far as to entirely ban publication of the fake FB profile. The court ruled details of the FB page could be published by the media but without any personal information that might identify A.B.

Free Press and Open Courts

Abella J. held:

“If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B. The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.”

Balancing Act

The S.C.C. has effectively balanced the need to protect our children from the “toxic” effects of cyberbullying with the public’s right to know by allowing publication of some of the details of what happened to this young lady.

I have to say I fully support the court’s decision. It protects victims privacy rights, it recognizes the harm caused by cyberbullying, it takes a stand against revictimization and publication of some of the non-personal details of the case may serve to educate the public about the reality and dangers of cyberbullying.

While today’s S.C.C. decision is certainly a victory against bullies, More Needs to Be Done in Nova Scotia to Protect Children Against Cyberbullying.