Defamation and Anonymous Postings on the Internet

By Shaya Silber

When will an internet service provider be ordered to provide personal information about one of it’s customers?  The Supreme Court of Canada (SCC) recently released dealt with this issue in the case of A.B. v. Bragg Communications.

The case involved a child was who was bullied and subjected to sexualized defamatory content online.   A fake profile was created on Facebook containing photos of the plaintiff, as well as sexually explicit details about the plaintiff, much of which was false and damaging.

The plaintiff, through her father, contacted Facebook to remove the profile. Facebook removed the profile, and provided the IP (internet protocal) address of the person who created the profile.   The IP address was traced back to an internet service provider called Bragg Communications.  Bragg Communications has issued the IP address to one of its customers, and presumably knew the name and contact information of that customer.

The plaintiff sued Bragg Communications to turn over the  subscriber information for the IP address.  In addition to the subscriber information, the plaintiff asked the court to remain anonymous throughout the proceedings, and for a publication ban on the content in question.

The Lower Court Decision – Open Courts Should Trump Anonymity

The lower court agreed that the ISP should turn over the subscriber information, but refused the plaintiff’s request for anonymity and for a publication ban. The court’s reasons were grounded in the long-standing principle of open courts and freedom of the press. The “open court” principle and freedom of the press are long-standing principles that are fundamental to any democratic society. Opening the judicial process to the public allows transparency and accountability. If courts were closed to the public, it can pave the way for corruption and totalitarianism. Freedom of the press is partly grounded in the same notion.

An exception to the open court principle can be made where there is evidence that specific harm will come to an individual if they are identified in court proceedings. In the current case, the lower courts found that there was no evidence of specific harm to the plaintiff in this case, and denied her request to remain anonymous.

Supreme Court of Canada Recognized the Harm of Going Public

The Supreme Court disagreed with the lower courts and overturned their ruling with respect to the anonymity issue.

The Court found that in these cases, an exception could be made. In cyber-bullying situations where the victim is a child, and the child is the subject of sexualized defamatory content, there is objective discernable harm to plaintiff.  Such a person needs to be protected.  Publication of their identity and of the defamatory postings would cause harm to the plaintiff. The Court ruled that the victim could remain anonymous.

Importantly, the Court created a presumption that there will be harm because the victim is a child who is likely going to be subjected to further cyber-bullying if she were identified in the proceedings.