SUPREME COURT OF CANADA
CITATION: A.B. v. Bragg Communications Inc., 2012 SCC 46
Courts — Open court principle — Publication bans — Children —
15-year old victim of sexualized cyberbullying applying for order requiring Internet
provider to disclose identity of person(s) using IP address to publish fake and
allegedly defamatory Facebook profile — Victim requesting to proceed anonymously
in application and seeking publication ban on contents of fake profile — Whether
victim required to demonstrate specific harm or whether court may find objectively
discernable harm.
A 15-year old girl found out that someone had posted a fake Facebook
profile using her picture, a slightly modified version of her name, and other
particulars identifying her. The picture was accompanied by unflattering commentary
about the girl’s appearance along with sexually explicit references. Through her
father as guardian, the girl brought an application for an order requiring the Internet
provider to disclose the identity of the person(s) who used the IP address to publish
the profile so that she could identify potential defendants for an action in defamation.
As part of her application, she asked for permission to anonymously seek the identity
of the creator of the profile and for a publication ban on the content of the profile.
Two media groups opposed the request for anonymity and the ban. The Supreme
Court of Nova Scotia granted the request that the Internet provider disclose the
2012 SCC 46 (CanLII)information about the publisher of the profile, but denied the request for anonymity
and the publication ban because there was insufficient evidence of specific harm to
the girl. The judge stayed that part of his order requiring the Internet provider to
disclose the publisher’s identity until either a successful appeal allowed the girl to
proceed anonymously or until she filed a draft order which used her own and her
father’s real names. The Court of Appeal upheld the decision primarily on the ground
that the girl had not discharged the onus of showing that there was evidence of harm
to her which justified restricting access to the media.
Held: The appeal should be allowed in part.
The critical importance of the open court principle and a free press has
been tenaciously embedded in the jurisprudence. In this case, however, there are
interests that are sufficiently compelling to justify restricting such access: privacy and
the protection of children from cyberbullying.
Recognition of the inherent vulnerability of children has consistent and
deep roots in Canadian law and results in the protection of young people’s privacy
rights based on age, not the sensitivity of the particular child. In an application
involving cyberbullying, there is no need for a child to demonstrate that he or she
personally conforms to this legal paradigm. The law attributes the heightened
vulnerability based on chronology, not temperament.
2012 SCC 46 (CanLII)While evidence of a direct, harmful consequence to an individual
applicant is relevant, courts may also conclude that there is objectively discernable
harm. It is logical to infer that children can suffer harm through cyberbullying, given
the psychological toxicity of the phenomenon. Since children are entitled to protect
themselves from bullying, cyber or otherwise, there is inevitable harm to them — and
to the administration of justice — if they decline to take steps to protect themselves
because of the risk of further harm from public disclosure. Since common sense and
the evidence show that young victims of sexualized bullying are particularly
vulnerable to the harms of revictimization upon publication, and since the right to
protection will disappear for most children without the further protection of
anonymity, the girl’s anonymous legal pursuit of the identity of her cyberbully should
be allowed.
In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2
S.C.R. 122, prohibiting identity disclosure was found to represent only minimal harm
to press freedom. The serious harm in failing to protect young victims of bullying
through anonymity, as a result, outweighs this minimal harm. But once the girl’s
identity is protected through her right to proceed anonymously, there is little
justification for a publication ban on the non-identifying content of the profile. If the
non-identifying information is made public, there is no harmful impact on the girl
since the information cannot be connected to her. The public’s right to open courts –
and press freedom – therefore prevail with respect to the non-identifying Facebook
content.
2012 SCC 46 (CanLII)Cases Cited
Referred to: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332;
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001
SCC 76, [2001] 3 S.C.R. 442; Edmonton Journal v. Alberta (Attorney General),
[1989] 2 S.C.R. 1326; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R.
175; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2,
[2011] 1 S.C.R. 19; Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011]
1 S.C.R. 65; R. v. Oakes, [1986] 1 S.C.R. 103; RJR-MacDonald Inc. v. Canada
(Attorney General), [1995] 3 S.C.R. 199; Thomson Newspapers Co. v. Canada
(Attorney General), [1998] 1 S.C.R. 877; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3;
R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Toronto Star Newspaper Ltd. v.
Ontario, 2012 ONCJ 27 (CanLII); R. v. L. (D.O.), [1993] 4 S.C.R. 419; Doe v.
Church of Jesus Christ of Latter-Day Saints in Canada, 2003 ABQB 794, 342 A.R.
394; R. v. R.(W.), 2010 ONCJ 526 (CanLII); Canadian Newspapers Co. v. Canada
(Attorney General), [1988] 2 S.C.R. 122; R. v. D. H., 2002 BCPC 464 (CanLII); F.N.
(Re), 2000 SCC 35, [2000] 1 S.C.R. 880.
Statutes and Regulations Cited
Civil Procedure Rules, N.S. Reg. 370/2008.
Criminal Code, R.S.C. 1985, c. C-46, s. 486.
Youth Criminal Justice Act, S.C. 2001, c. 1, s. 110.
2012 SCC 46 (CanLII)Treaties and Other International Instruments
Convention on the Rights of the Child, Can. T.S. 1992 No. 3.
Authors Cited
“Cyberbullying: A Growing Problem”, Science Daily, February 22, 2010 (online:
www.sciencedaily.com/releases/2010/02/100222104939.htm).
Eltis, Karen. “The Judicial System in the Digital Age: Revisiting the Relationship
between Privacy and Accessibility in the Cyber Context” (2011), 56 McGill L.J.
289.
Jones, Lisa M., David Finkelhor and Jessica Beckwith. “Protecting victims’ identities
in press coverage of child victimization” (2010), 11 Journalism 347.
Lucock, Carole, and Michael Yeo. “Naming Names: The Pseudonym in the Name of
the Law” (2006), 3 U. Ottawa L. & Tech. J. 53.
Nova Scotia. Task Force on Bullying and Cyberbullying. Respectful and
Responsible Relationships: There’s No App for That: The Report of the Nova
Scotia Task Force on Bullying and Cyberbullying. Nova Scotia: The Task
Force, 2012.
UNICEF Innocenti Research Centre. Child Safety Online: Global challenges and
strategies. Florence, Italy: UNICEF, 2011.
Winn, Peter A. “Online Court Records: Balancing Judicial Accountability and
Privacy in an Age of Electronic Information” (2004), 79 Wash. L. Rev. 307.
APPEAL from a judgment of the Nova Scotia Court of Appeal
(MacDonald C.J.N.S. and Saunders and Oland JJ.A.), 2011 NSCA 26, 301 N.S.R.
(2d) 34, 953 A.P.R. 34, 228 C.R.R. (2d) 181, 97 C.P.C. (6th) 54, 80 C.C.L.T. (3d)
180, [2011] N.S.J. No. 113 (QL), 2011 CarswellNS 135, affirming a decision of
2012 SCC 46 (CanLII)LeBlanc J., 2010 NSSC 215, 293 N.S.R. (2d) 222, 928 A.P.R. 222, 97 C.P.C. (6th)
24, [2010] N.S.J. No. 360 (QL), 2010 CarswellOnt 397. Appeal allowed in part.
Michelle C. Awad, Q.C., and Jane O’Neill, for the appellant.
Daniel W. Burnett and Paul Brackstone, for the amicus curiae.
Written submissions only by Brian F. P. Murphy and Wanda M. Severns,
for the intervener BullyingCanada Inc.
Marko Vesely and M. Toby Kruger, for the intervener the British
Columbia Civil Liberties Association.
Mahmud Jamal, Jason MacLean, Carly Fidler and Steven Golick, for the
intervener Kids Help Phone.
Iris Fischer and Dustin Kenall, for the intervener the Canadian Civil
Liberties Association.
Joseph E. Magnet and Patricia Kosseim, for the intervener the Privacy
Commissioner of Canada.
Ryder Gilliland and Adam Lazier, for the interveners Newspapers
Canada, Ad IDEM/Canadian Media Lawyers Association, Canadian Association of
2012 SCC 46 (CanLII)Journalists, Professional Writers Association of Canada and Book and Periodical
Council.
Tamir Israel, for the intervener the Samuelson-Glushko Canadian
Internet Policy and Public Interest Clinic.
Jeffrey S. Leon, Ranjan K. Agarwal and Daniel Holden, for the intervener
the Canadian Unicef Committee.
Written submissions only by William S. Challis and Stephen McCammon,
for the intervener the Information and Privacy Commissioner of Ontario.
Written submissions only by Jonathan M. Rosenthal, for the intervener
Beyond Borders.
No one appeared for the respondents.
The judgment of the Court was delivered by
ABELLA J.—
[1] On March 4, 2010, a 15-year-old girl, A.B., found out that someone had
posted a Facebook profile using her picture, a slightly modified version of her name,
2012 SCC 46 (CanLII)and other particulars identifying her. Accompanying the picture was some
unflattering commentary about the girl’s appearance along with sexually explicit
references. The page was removed by the internet provider later that month.
[2] Once notified of the situation, Facebook’s counsel in Palo Alto,
California provided the IP address associated with the account, which was said to be
located in Dartmouth, Nova Scotia. The girl’s counsel determined that it was an
“Eastlink address” in Dartmouth, Nova Scotia. Further inquiry confirmed that the
respondent Bragg Communications owns Eastlink, a provider of Internet and
entertainment services in Atlantic Canada.
[3] Eastlink consented to giving more specific information about the address
if it had authorization from a court to do so. As a result, A.B., through her father as
guardian, brought a preliminary application under Nova Scotia’s Civil Procedure
Rules, N.S. Reg. 370/2008, for an order requiring Eastlink to disclose the identity of
the person(s) who used the IP address to publish the profile to assist her in identifying
potential defendants for an action in defamation. She stated in her Notice of
Application that she had “suffered harm and seeks to minimize the chance of further
harm” (A.R., at p. 98). As part of her application, she asked the court for permission
to seek the identity of the creator of the fake profile anonymously and for a
publication ban on the content of the fake Facebook profile. She did not ask that the
hearing be held in camera.
2012 SCC 46 (CanLII)[4] Eastlink did not oppose her motion. The Halifax Herald and Global
Television became aware of the girl’s application when notice of the request for a
publication ban appeared as an automatic advisory on the Nova Scotia publication
ban media advisory website. They advised the court that they opposed both of the
girl’s requests: the right to proceed anonymously and a publication ban.
[5] The court granted the order requiring Eastlink to disclose the information
about the publisher of the fake Facebook profile on the basis that a prima facie case
of defamation had been established and there were no other means of identifying the
person who published the defamation. But it denied the request for anonymity and
the publication ban because there was insufficient evidence of specific harm to the
girl.
[6] The judge stayed that part of his order requiring Eastlink to disclose the
publisher’s identity until either a successful appeal allowed the girl to proceed
anonymously, or until she filed a draft order which used her own and her father’s real
names.
[7] The decision was upheld by the Court of Appeal primarily on the ground
that the girl had not discharged the onus of showing that there was real and
substantial harm to her which justified restricting access to the media.
[8] Both courts ordered costs against the girl in favour of the two media
outlets.
2012 SCC 46 (CanLII)[9] In my view, both courts erred in failing to consider the objectively
discernable harm to A.B. I agree with her that she should be entitled to proceed
anonymously, but once her identity has been protected, I see no reason for a further
publication ban preventing the publication of the non-identifying content of the fake
Facebook profile.
Analysis
[10] A.B.’s appeal to this Court is based on what she says is the failure to
properly balance the competitive risks in this case: the harm inherent in revealing her
identity versus the risk of harm to the open court principle in allowing her to proceed
anonymously and under a publication ban. Unless her privacy is protected, she
argued, young victims of sexualized cyberbullying like her will refuse to proceed
with their protective claims and will, as a result, be denied access to justice.
[11] The open court principle requires that court proceedings presumptively be
open and accessible to the public and to the media. This principle has been described
as a “hallmark of a democratic society” (Vancouver Sun (Re), [2004] 2 S.C.R. 332, at
para. 23) and is inextricably tied to freedom of expression. A.B. requested two
restrictions on the open court principle: the right to proceed anonymously and a
publication ban on the content of the fake Facebook profile. The inquiry is into
whether each of these measures is necessary to protect an important legal interest and
impairs free expression as little as possible. If alternative measures can just as
effectively protect the interests engaged, the restriction is unjustified. If no such
2012 SCC 46 (CanLII)alternatives exist, the inquiry turns to whether the proper balance was struck between
the open court principle and the privacy rights of the girl: Dagenais v. Canadian
Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442.
[12] The Halifax Herald and Global Television did not appear in the
proceedings before this Court. Their “position” was, however, ably advanced by an
amicus curiae. In his view, like the Court of Appeal, the mere fact of the girl’s age
did not, in the absence of evidence of specific harm to her, trump the open court
principle and freedom of the press.
[13] Since Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R.
1326, the critical importance of the open court principle and a free press has been
tenaciously embedded in the jurisprudence and need not be further revisited here.
What does need some exploration, however, are the interests said to justify restricting
such access in this case: privacy and the protection of children from cyberbullying.
These interests must be shown to be sufficiently compelling to warrant restrictions on
freedom of the press and open courts. As Dickson J. noted in Attorney General of
Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, there are cases in which the
protection of social values must prevail over openness (pp. 186-87).
[14] The girl’s privacy interests in this case are tied both to her age and to the
nature of the victimization she seeks protection from. It is not merely a question of
her privacy, but of her privacy from the relentlessly intrusive humiliation of
sexualized online bullying: Carole Lucock and Michael Yeo, “Naming Names: The
2012 SCC 46 (CanLII)Pseudonym in the Name of the Law” (2006), 3 U. Ottawa L. & Tech. J. 53, at pp. 72-
73; Karen Eltis, “The Judicial System in the Digital Age: Revisiting the Relationship
between Privacy and Accessibility in the Cyber Context” (2011), 56, McGill L.J. 289,
at p. 302.
[15] The amicus curiae pointed to the absence of evidence of harm from the
girl about her own emotional vulnerability. But, while evidence of a direct, harmful
consequence to an individual applicant is relevant, courts may also conclude that
there is objectively discernable harm.
[16] This Court found objective harm, for example, in upholding the
constitutionality of Quebec’s Rules of Practice that limited the media’s ability to film,
take photographs, and conduct interviews in relation to legal proceedings (in
Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19),
and in prohibiting the media from broadcasting a video exhibit (in Canadian
Broadcasting Corp. v. The Queen, [2011] 1 S.C.R. 65). In the former, Deschamps J.
held (at para. 56) that the Dagenais/Mentuck test requires neither more nor less than
the one from R. v. Oakes, [1986] 1 S.C.R. 103. In other words, absent scientific or
empirical evidence of the necessity of restricting access, the court can find harm by
applying reason and logic: RJR-MacDonald Inc. v. Canada (Attorney General),
[1995] 3 S.C.R. 199, at para. 72; Thomson Newspapers Co. v. Canada (Attorney
General), [1998] 1 S.C.R. 877, at para. 91.
2012 SCC 46 (CanLII)[17] Recognition of the inherent vulnerability of children has consistent and
deep roots in Canadian law. This results in protection for young people’s privacy
under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice
Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention
international protections such as the Convention on the Rights of the Child, Can. T.S.
1992 No. 3, all based on age, not the sensitivity of the particular child. As a 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 the heightened vulnerability based on chronology, not temperament: See R.
v. D.B., [2008] 2 S.C.R. 3, at paras. 41, 61 and 84-87; R. v. Sharpe, [2001] 1 S.C.R.
45, at paras. 170-74.
[18] This led Cohen J. in Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ
27 (Can LII), to explain the importance of privacy in the specific context of young
persons who are participants in the justice system:
The concern to avoid labeling and stigmatization is essential to an
understanding of why the protection of privacy is such an important value
in the Act. However it is not the only explanation. The value of the
privacy of young persons under the Act has deeper roots than exclusively
pragmatic considerations would suggest. We must also look to the
Charter, because the protection of privacy of young persons has
undoubted constitutional significance.
Privacy is recognized in Canadian constitutional jurisprudence as
implicating liberty and security interests. In Dyment, the court stated that
privacy is worthy of constitutional protection because it is “grounded in
man’s physical and moral autonomy,” is “essential for the well-being of
the individual,” and is “at the heart of liberty in a modern state”
2012 SCC 46 (CanLII)(para. 17). These considerations apply equally if not more strongly in the
case of young persons. Furthermore, the constitutional protection of
privacy embraces the privacy of young persons, not only as an aspect of
their rights under section 7 and 8 of the Charter, but by virtue of the
presumption of their diminished moral culpability, which has been found
to be a principle of fundamental justice under the Charter.
. . .
[T]he protection of the privacy of young persons fosters respect for
dignity, personal integrity and autonomy of the young person. [Emphasis
added; paras. 40-41 and 44.]
[19] And in R. v. L. (D.O.), [1993] 4 S.C.R. 419, L’Heureux-Dubé J. upheld
the constitutionality of the Criminal Code provisions that allowed for the admission
of video tape evidence from child complainants in sexual assault cases, based on the
need to reduce the stress and trauma suffered by child complainants in the criminal
justice system: pp. 445-46; see also Doe v. Church of Jesus Christ of Latter-Day
Saints in Canada, 2003 ABQB 794, 341 A.R. 395, at para. 9.
[20] It is logical to infer that children may suffer harm through
cyberbullying. Such a conclusion is consistent with the psychological toxicity of the
phenomenon described in the Report of the Nova Scotia Task Force on Bullying and
Cyberbullying, chaired by Prof. A. Wayne MacKay, the first provincial task force
focussed on online bullying: (Respectful and Responsible Relationships: There’s No
App for That: The Report of the Nova Scotia Task Force on Bullying and
Cyberbullying (2012)). The Task Force was created as a result of “[a] tragic series of
youth suicides” (p. 4).
2012 SCC 46 (CanLII)[21] The Report defined bullying as
. . . behaviour that is intended to cause, or should be known to cause, fear,
intimidation, humiliation, distress or other forms of harm to another
person’s body, feelings, self-esteem, reputation or property. Bullying can
be direct or indirect, and can take place by written, verbal, physical or
electronic means, or any other form of expression. [pp. 42-43]
Its harmful consequences were described as “extensive”, including loss of selfesteem, anxiety, fear and school drop-outs (p. 4). Moreover, victims of bullying were
almost twice as likely to report that they attempted suicide compared to young people
who had not been bullied (at p. 86): See also R. v. R.(W.), 2010 ONCJ 526 (Can LII),
at paras. 11 and 16, and “Cyberbullying: A Growing Problem”, Science Daily
(February 22, 2010, online).
[22] The Report also noted that cyberbullying can be particularly harmful
because the content can be spread widely, quickly — and anonymously:
The immediacy and broad reach of modern electronic technology has made
bullying easier, faster, more prevalent, and crueller than ever before.
. . . cyber-bullying follows you home and into your bedroom; you can never
feel safe, it is “non-stop bullying”. . . . cyberbullying is particularly insidious
because it invades the home where children normally feel safe, and it is
constant and inescapable because victims can be reached at all times and in all
places.
The anonymity available to cyberbullies complicates the picture further as it
removes the traditional requirement for a power imbalance between the bully
and victim, and makes it difficult to prove the identity of the perpetrator.
2012 SCC 46 (CanLII)Anonymity allows people who might not otherwise engage in bullying
behaviour the opportunity to do so with less chance of repercussion. . . .
. . . The cyber-world provides bullies with a vast unsupervised public
playground . . . . [pp. 11-12]
[23] In addition to the psychological harm of cyberbullying, we must consider
the resulting inevitable harm to children — and the administration of justice — if they
decline to take steps to protect themselves because of the risk of further harm from
public disclosure.
[24] Professor MacKay’s Report is consistent with the inference that, absent a
grant of anonymity, a bullied child may not pursue responsive legal action. He notes
that half of all bullying goes unreported, largely out of fear that reporting will not be
met with solutions or understanding sufficient to overcome the fear of retaliation: p.
10. One of his recommendations, as a result, was that mechanisms be developed to
report cyberbullying anonymously (p. 66; Appendix E; see also Peter A. Winn,
“Online Court Records: Balancing Judicial Accountability and Privacy in an Age of
Electronic Information” (2004), 79 Wash. L. Rev. 307, at p. 328).
[25] In the context of sexual assault, this Court has already recognized that
protecting a victim’s privacy encourages reporting: Canadian Newspapers Co. v.
Canada (Attorney General), [1988] 2 S.C.R. 122. It does not take much of an
analytical leap to conclude that the likelihood of a child protecting himself or herself
from bullying will be greatly enhanced if the protection can be sought anonymously.
2012 SCC 46 (CanLII)As the Kids Help Phone factum constructively notes (at para. 16), protecting
children’s anonymity could help ensure that they will seek therapeutic assistance and
other remedies, including legal remedies where appropriate. In particular, “[w]hile
media publicity is likely to have a negative effect on all victims, there is evidence to
be particularly concerned about child victims. . . . Child victims need to be able to
trust that their privacy will be protected as much as possible by those whom they have
turned to for help”: Lisa M. Jones, David Finkelhor and Jessica Beckwith, “Protecting
victims’ identities in press coverage of child victimization” (2010), 11 Journalism
347, at pp. 349-50.
[26] Studies have confirmed that allowing the names of child victims and
other identifying information to appear in the media can exacerbate trauma,
complicate recovery, discourage future disclosures, and inhibit cooperation with
authorities. (See e.g., UNICEF Innocenti Research Centre, Child Safety Online:
Global challenges and strategies (2011), at pp. 15–16; and R. v. D.H., 2002 BCPC
464 (Can LII), at para. 8).
[27] 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.
2012 SCC 46 (CanLII)[28] The answer to the other side of the balancing inquiry — what are the
countervailing harms to the open courts principle and freedom of the press — has
already been decided by this Court in Canadian Newspapers. In that case, the
constitutionality of the provision in the Criminal Code prohibiting disclosure of the
identity of sexual assault complainants was challenged on the basis that its mandatory
nature unduly restricted freedom of the press. In upholding the constitutionality of
the provision, Lamer J. observed that:
While freedom of the press is nonetheless an important value in our
democratic society which should not be hampered lightly, it must be
recognized that the limits imposed by [prohibiting identity disclosure] on the
media’s rights are minimal. . . . Nothing prevents the media from being
present at the hearing and reporting the facts of the case and the conduct of the
trial. Only information likely to reveal the complainant’s identity is concealed
from the public. [Emphasis added; p. 133.]
In other words, the harm has been found to be “minimal”. This perspective of the
relative insignificance of knowing a party’s identity was confirmed by Binnie J. in
F.N. where he referred to identity in the context of the Young Offenders legislation as
being merely a “sliver of information”: F.N. (Re), [2000] 1 S.C.R. 880, at para. 12.
[29] The acknowledgment of the relative unimportance of the identity of a
sexual assault victim is a complete answer to the argument that the non-disclosure of
the identity of a young victim of online sexualized bullying is harmful to the exercise
of press freedom or the open courts principle. Canadian Newspapers clearly
2012 SCC 46 (CanLII)establishes that the benefits of protecting such victims through anonymity outweigh
the risk to the open court principle.
[30] On the other hand, as in Canadian Newspapers, once A.B.’s identity is
protected through her right to proceed anonymously, there seems to me to be little
justification for a publication ban on the non-identifying content of the fake Facebook
profile. 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.
[31] I would allow the appeal in part to permit A.B. to proceed anonymously
in her application for an order requiring Eastlink to disclose the identity of the
relevant IP user(s). I would, however, not impose a publication ban on that part of
the fake Facebook profile that contains no identifying information. I would set aside
the costs orders against A.B. in the prior proceedings but would not make a costs
order in this Court.
Appeal allowed in part.
2012 SCC 46 (CanLII)
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