A.B. v. Bragg Communications Inc.

Raj PagariyaCase Summary

Request to proceed anonymously and seek a publication ban on a Facebook profile

A.B., by her Litigation Guardian, C.D. v. Bragg Communications Inc.
2012 SCC 46 : [2012] 2 R.C.S. 567
In the Supreme Court of Canada
File Number 34240
Before Chief Justice McLachlin, Justice LeBel, Justice Deschamps, Justice Fish,  Justice Abella, Justice Rothstein, and Justice Karakatsanis
Decided on September 27, 2012

Relevancy of the Case: Request to proceed anonymously and seek a publication ban on a Facebook profile

Statutes and Provisions Involved

  • Nova Scotia’s Civil Procedure Rules, 2008

Relevant Facts of the Case

  • A.B., a 15-year-old girl, found out that someone had created her fake profile using her picture. This fake profile had a slightly modified version of her name and other particulars identifying her. An unflattering commentary about her appearance accompanied this picture, along with sexually explicit references.
  • Facebook’s counsel in Palo Alto, California, provided the IP address associated with the account. This IP address belonged to Eastlink, a respondent-owned internet and entertainment service in Atlantic Canada. Eastlink agreed to provide additional details upon receiving a court order.
  • Through her father, C.D., she approached the court of the first instance to direct the internet provider to disclose the identity of the person(s) who used the IP address to create this profile. This would help her identify potential defendants for a defamation suit.
  • In her application, she asked for permission to anonymously seek the identity of the profile’s creator and for a publication ban on the profile’s contents.
  • Eastlink did not oppose her requests before the court. However, two media groups opposed these requests.
  • The Supreme Court of Nova Scotia granted the request requiring the internet provider to disclose the IP address. However, the court denied the requests for anonymity and publication ban. This order was based on the ground that there was insufficient evidence of specific harm to the girl.
  • Later, the judge stayed part of the order requiring the internet provider to disclose the IP address until a successful appeal allowed her to proceed anonymously, or she filed a draft order using her own and her father’s real names.
  • The Court of Appeal upheld the decision on the ground that she did not discharge the onus of showing evidence of harm to her, which justified restricting access to media.

Prominent Arguments by the Counsels

  • The appellant’s counsel submitted that the previous courts have failed to properly balance the competitive risks in this case. That is the harm in revealing her identity versus the risk of harm to the open court principle. Without protecting her privacy, young victims like her will refuse to proceed with their protective claims.

Opinion of the Bench

  • In this case, there are interests that are sufficiently compelling to justify restricting access to media. These interests are privacy and the protection of children from cyber bullying.
  • Children are entitled to protect themselves from bullying, cyber or otherwise. There is inevitable harm to them and the administration of justice if they fail to defend themselves because of the risk of further harm from public disclosure.
  • Once the court allows her right to proceed anonymously, there is little justification for a publication ban on the non-identifying contents of the profile.
  • Both the courts erred in failing to consider the objectively discernable harm to her. In this case, Her privacy interests are related to her age and the nature of the victimisation she seeks protection from.

Final Decision

  • The court partially allowed the appeal while declaring that the publication ban on the non-identifying parts of the Facebook profile was unnecessary.