The Canadian Civil Liberties Association is set to appear before the Supreme Court in A.B. v. Bragg Communications Inc., a case that raises questions around the open court principle, freedom of expression, and access to justice in the context of a case involving a minor who had been cyber-bullied.
In March 2010, a youth in Nova Scotia, A.B., discovered that someone had created a fake Facebook page purporting to be hers. The bogus profile included her photograph and other identifying details, along with what a judge later called “scandalous sexual commentary of a private and intimate nature.” Shortly thereafter the Facebook page was taken down. A.B., through her litigation guardian, applied for an order requiring the Internet Service Provider (ISP), identified by Facebook as the host of the originating Internet protocol (IP) address, to provide her with the name and address of the person(s) who created the bogus page. In her application, she stated that she wished to discover the identity of the profile creator(s) so that she could pursue a defamation suit against them.
In her application, she also asked the court to conceal her identity by allowing her to proceed by initials, and to ban the republication of the actual words contained in the face Facebook profile. Although the ISP agreed to disclose the information with a court order, two news outlets successfully objected to the other requests as infringing upon the open court principle. The Chambers judge found that there was no evidence before him that A.B. would face serious risk of harm without a total publication ban and anonymity: a requirement of the Dagenais/Mentuck test to limit the primacy of open courts.
A.B. appealed. She argued that a minor should not have to prove that actual harm would occur if the offending material were repeated, or her name made public. Rather, the courts should take judicial notice of the damage suffered by minors in cases like this, and automatically protect their privacy. The Nova Scotia Court of Appeal disagreed and upheld the Chambers judge’s decision.
On May 10, 2012, the Supreme Court will hear oral arguments in the case. It must determine the proper balance between the transparency of court proceedings and the privacy of complainants in cases of this nature. CCLA will appear to defend the existing standard, the Dagenais/Mentuck test, which requires the party seeking a judicial order that will limit freedom of expression or the press (such as a publication ban or anonymity order), to provide clear and specific evidence that serious harm would flow from publication of the information which he or she seeks to conceal. CCLA will argue that the existing test protects two important public interests – open courts and access to justice – and that it should continue to be applied with a high evidentiary standard, and without blanket exemptions.
CCLA will also argue that an anonymity order is more appropriate in this case than a publication ban (or both) for reconciling open courts, freedom of expression, privacy, and access to justice. Confidentiality could protect A.B.’s privacy and allow her to proceed, without concealing from the public the details of the fake profile. This key information would allow the public access to the speech whose permissibility could be on the line in a defamation case; it would also allow others who may be targeted in a similar way to consider whether the case applies to their situation; and, finally, it could enhance the broader social response to the problem of bullying.
Iris Fischer and Dustin Kenall, of Blake, Cassels & Graydon LLP, are representing the Canadian Civil Liberties Association in this case.