This post was submitted by Lawson Lundell guest author, Toby Kruger.
On May 10, 2012, Marko Vesely and Toby Kruger appeared at the Supreme Court of Canada on behalf of the British Columbia Civil Liberties Association (“BCCLA”) in A.B. by her Litigation Guardian, C.D., v Bragg Communications.
In this case, a 15 year-old girl (A.B.) in Nova Scotia became aware of a Fake Profile on Facebook containing her photograph and a slightly modified version of her name. The Fake Profile contained various remarks about A.B.’s alleged sexual practices and preferences and other distasteful comments. A.B. did not know who created the Fake Profile.
A.B., through her father, sought to uncover the identity of the person who created the Fake Profile. Facebook agreed to provide the IP address used to create the Fake Profile. A.B. then sought an order requiring the respondent Bragg Communications, the internet service provider (ISP) linked with the IP address, to disclose the identity of the person behind the IP address. To this point, there is nothing unconventional about this case: in the normal course, internet service providers are not permitted to disclose the identity of their users without a court order. What makes this case unique is that A.B. sought to obtain the order using a pseudonym and with a publication over the contents of the Fake Profile, which she alleged was defamatory.
The Halifax Herald and Global Television, as members of the media, opposed A.B.’s request to proceed anonymously and under a publication ban, saying that A.B. had failed to provide evidence sufficient to justify an incursion on freedom of the press and the open courts principle. A.B. took the position that the Court should take notice of her inherent vulnerability as a minor and that she should be entitled to a confidentiality order and publication ban to prevent further harm to her.
While the Nova Scotia Supreme Court was prepared to order that the ISP reveal the creator of the Fake Profile’s identity, the Court was not prepared to grant A.B. that order using a pseudonym or a publication ban. Citing the test for a common law publication ban developed by the Supreme Court of Canada in Dagenais v Canadian Broadcasting Corp.,  3 SCR 835 and in R v Mentuck, 2001 SCC 76, the Nova Scotia Supreme Court held that in the absence of evidence of harm to A.B., the application for a confidentiality order and publication ban must be denied. The Nova Scotia Court of Appeal dismissed A.B.’s appeal, holding, as did the lower court, that there was insufficient evidence of harm to A.B. to justify a departure from the open courts principle in this case.
A.B. sought and obtained leave to appeal to the Supreme Court of Canada, and the BCCLA obtained leave to intervene. Several other interveners took positions on both sides.
While the BCCLA took no position on the relief sought by A.B., the BCCLA submitted that, if the Court was persuaded to grant relief, that relief should be limited to a confidentiality order that protects A.B.’s identity, and not a publication ban over the allegedly defamatory Fake Profile.
Central to the BCCLA’s submissions was the notion that if the public is not permitted to know in a particular case what speech is being held to be defamatory, then it will not be able to understand, scrutinize or question whether the courts are striking that balance appropriately. Similarly, in the context of a third-party production order, such as the one A.B. sought from the respondent Bragg, the BCCLA submitted that the Court must balance the public interest in favour of disclosure against an anonymous author’s rights to freedom of expression and privacy. The public will only be able to understand and assess whether the Court has struck that balance appropriately if they can see the speech that has been found by the Court, in the name of the public interest, to justify an order disclosing the identity of an internet user who has chosen to remain anonymous.
The Court has reserved judgment, and a decision could take anywhere from 6 – 18 months. The case has garnered much media attention, as the outcome of the appeal requires the Court to determine the appropriate balance between the open courts principle and the Charter protected right of freedom of expression on one hand, and the right to privacy and the common law of defamation on the other. In answering the questions at issue in this appeal, the Court will determine whether it is appropriate to grant an entitlement to a limit on freedom of expression in certain types of cases.
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