A Delicate Balance: Defining the Line Between Open Civil Proceedings and the Protection of Children in the Online Digital Era

Authors

Courtney Retter
Shaheen Shariff

Keywords

protecting children online, open civil proceedings, AB (Litigation Guardian of) v Bragg Communications Inc.

Abstract

He thought of the telescreen with its never-sleeping ear. They could spy upon you night and day, but if you kept your head you could still outwit them. [. . .] They could lay bare in the utmost detail everything that you had done or said or thought; but the inner heart, whose workings were mysterious even to yourself, remained impregnable.

— George Orwell, 1984

On Thursday September 27, 2012, a few months after our paper was written, the Supreme Court of Canada solidified the rights of children victimized by cyberbullying in the landmark decision of AB (Litigation Guardian of) v Bragg Communications Inc. The unanimous decision overturned the holding of the Nova Scotia Court of Appeal in part. The justices agreed with the contention that objectively discernible harm would result to the15-year-old female plaintiff who was victimized by online sexualized bullying, if she was forced to proceed in a legal action against her cyber-perpetrators under her real name. Writing on behalf of the court, Justice Abella held that, “. . .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.” Justice Abella argued, in other words, that while the open court principle mandates that court proceedings presumptively remain open and accessible to the media and the public, there were sufficiently compelling interests in this case, namely, the protection of children and their privacy, to warrant restrictions on freedom of the press and openness. The Supreme Court did not grant, however, the child-plaintiff’s request for a publication ban of the allegedly defamatory material contained in a fake Facebook profile in her name. Instead, the court held that such a confidentiality order would be excessive, given that her name could no longer be connected to the information.

Recommended Citation

Courtney Retter and Shaheen Shariff, "A Delicate Balance: Defining the Line Between Open Civil Proceedings and the Protection of Children in the Online Digital Era" (2012) 10:2 CJLT.