Wednesday, September 26, 2012

Landmark cyberbullying and children's privacy decision expected from Supreme Court of Canada

The Supreme Court of Canada will tomorrow release its decision in the appeal of A.B. v. Bragg Communications Inc., 2011 NSCA 26. At issue is whether a young person can initiate a legal proceeding under a pseudonym in circumstances where the young person is seeking information to identify a cyberbully. In addition, the Court will consider the imposition of a publication ban on the details of the underlying defamation.

Here are the details from the SCC:

Supreme Court of Canada - Decisions - Judgments to be Rendered in Appeals

34240 A.B. by her Litigation Guardian, C.D. v. Bragg Communications Incorporated, a body corporate and Halifax Herald Limited, a body corporate

(Publication Ban in Case) (Sealing Order)

Civil procedure ‑ Confidentiality orders ‑ Defamation ‑ Appellant applying for order requiring disclosure of identity of persons who used particular IP address to create fake profile on Facebook ‑ Appellant also applying for permission to proceed by way of initials and for order prohibiting publication of allegedly defamatory statements in profile ‑ Whether a minor seeking a civil remedy for online sexualized bullying should be entitled to bring a motion to determine the identity of the intended defendant using a pseudonym and under a publication ban concerning the substance of the statement ‑ Whether a court should take notice of the inherent vulnerability of young people subject to online sexualized bullying and the serious risk of harm to them if they are required to republish the comments and reveal their identity to seek a remedy, in considering if a confidentiality order and publication ban should be granted ‑ Whether a court can invoke its parens patriae jurisdiction to protect a child, in considering whether a confidentiality order and publication ban should be granted for a child subject to online sexualized bullying ‑ Whether media that choose to intervene in a motion for a publication ban should be entitled to costs if the motion is not successful, particularly when the motion involves interests broader than those of the applicant.

The appellant became aware of a fake profile on the social networking website Facebook, which included a photograph of the appellant, a slightly modified version of her name, and other particulars which identified her. The fake profile also discussed the appellant’s physical appearance, her weight, and allegedly included scandalous sexual commentary of a private and intimate nature. The appellant, by her litigation guardian, applied in chambers for an order requiring the respondent Bragg Communications to disclose the identity of the persons who used a particular IP address to perpetrate the alleged defamation. As additional relief, the appellant sought an order which would allow her to proceed by pseudonym (initials), and as well, a partial publication ban to prevent the public from knowing the words contained in the fake Facebook profile. LeBlanc J. granted the disclosure order but refused the additional relief sought. The Court of Appeal upheld that decision.

Origin of the case: Nova Scotia

File No.: 34240

Judgment of the Court of Appeal: March 4, 2011

Counsel: Michelle Awad, Q.C. for the appellant
Daniel W. Burnett as Amicus Curiae

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