Cyberbullying in the courts
Sher Scott - January 28, 2013
The proliferation of social media coupled with recent high-profile cases — not to mention marketing campaigns by the Government of Nova Scotia — has raised the awareness of cyberbullying. But it remains an issue rife with complicated ethical and legal questions.
Earlier this month, Law and Technology Institute’s Eminent Speakers Series at the Schulich School of Law examined just one aspect of this: whether the identity of victims of cyberbullying should be protected by the court in civil cases.
Considering A.B. v. Bragg Communications
The event highlighted the contributions of the Dal community to the topic, as alumni Michelle Awad and Jim Rossiter, as well faculty member Wayne McKay, led a discussion of the recent Supreme Court of Canada decision in A.B. v. Bragg Communications.
The decision ruled on a motion on behalf of a 15-year-old plaintiff known as "A.B.," who is bringing a civil action against her alleged cyberbullies. The bullies created a Facebook page featuring the young woman’s picture and derogatory and sexualized comments about her appearance.
The case revolved around the conflict between A.B.’s desire to protect her identity and the right to freedom of the press. A.B. asked the Court to allow her to use her initials in place of her full name in the proceedings and for a publication ban on the contents of the Facebook profile.
The Supreme Court of Canada held that although freedom of the press and the principle of open courts are necessarily jealously guarded for the legitimacy of our legal system, so too is the right of young people to protect themselves from bullies. A.B. was allowed to use her initials for the purposes of the case, but a media ban on the Facebook page was limited to content which could identify her as the victim.
The risk of revictimisation
Michelle Awad, partner at McInnes Cooper, is acting on behalf of A.B. in the suit. Awad explained her main concern in the case is diminishing the barrier for the victims of cyberbullying to seek redress in the courts.
“The victim wants to pursue a remedy without being the subject of suffering through it again,” she said, explaining that would be the effect of allowing her name and the contents of the page to become public.
Awad said that, as a parent herself, she sleeps well at night with the decision. “The win is for the children,” she said, noting one danger in allowing full names and other identifying content to be published is the potential chilling effect on cyberbullies being brought to justice.
Freedom of the press?
Traditionally, the principle of open courts has held that court proceedings should happen in the public eye to foster legitimacy and the perception of fairness.
For Jim Rossiter, the decision in A.B. v. Bragg runs against this principle and is on the precipice of a slippery slope. The Court is “establishing for the first time the automatic right of a class to anonymity … by a publication ban,” said Rossiter. This is done by relaxing the previously strict requirement of proving a "clear and substantial risk" to the party seeking anonymity. Instead, in its decision, the Court accepts that sexualized cyberbullying poses a risk of harm to young victims, so that in the future cases the harm need not be strictly proven.
The decision effectively allows any young person who alleges sexualized cyberbullying to ask the court to stop the publication of his or her name and the content that constitutes the act of bullying.
Rossiter argued that in the future this may result in other classes establishing automatic bans. Examples of these may include children in civil claims for sexual or other assaults, or women pursuing civil claims for sexual assault.
Wayne MacKay, Yogis & Keddy Chair in Human Rights Law at the Schulich School of Law and also chair of the Nova Scotia Cyberbullying Task Force, suggested the decision may not be as cut and dried as a simple choice between privacy and open courts. Professor MacKay outlined several recurring themes arising from recent cyberbullying cases that point to a need to rethink the idea of open courts in the context of access to justice.
The first of these themes is persistent harm of bullying generally and cyberbullying specifically, magnified by the pervasive nature of the Internet and the unique conditions it creates to allow bullies to remain anonymous. Another is the vulnerability of children: MacKay said the courts seem to have taken notice that, as a young person, it is particularly hurtful to be excluded through bullying. Thus the impact of violating a young person’s privacy by identifying them as a victim of cyberbullying is magnified.
Professor MacKay argued that privacy itself needs to be reconceptualised in the digital age as something less about territory and more about a human right, “an extension of personality, therefore not changed by technology.” Under such a reconception, “access is assisted by protecting the privacy of participants.”
If you would like to view the discussion in its entirety, the film will be posted to the Law and Technology Institute website in the near future.