The Nova Scotia Court of Appeal has just issued a decision in which it affirmed a decision to deny a potential defamation claimant the use of a pseudonym (initials) in pursuing a defamation claim.
The appeal was brought by a 15-year-old girl who has taken issue with an individual who created a fake and allegedly defamatory Facebook profile in her name. In May 2010, she succeeded in arguing for production of the identity of the individual associated with the fake profile before LeBlanc J. of the Nova Scotia Supreme Court. At the same time, LeBlanc J. denied the appellant an order permitting the use of a pseudonym and denied her a publication ban.
Saunders J.A. wrote today’s judgment for the Court of Appeal. He upholds LeBlanc J.’s order on a deferential standard, but nonetheless makes some broad and principled statements in favour of the open courts principle. More specifically, he says:
- that a court should not apply its parens patriae jurisdiction to allow a child to sue anonymously for defamation (para. 65);
- that an order to shield the identity of a defamation plaintiff (regardless of age) is an anathema to an action in defamation, which is about public vindication of reputation (paras. 80 to 85); and
- that the presumed damage to reputation that flows from a defamation finding does not excuse a party who is seeking a restrictive order from proving “a serious risk to the proper administration of justice” as called for by the Dagenais/Mentuck test (para. 96).
Saunders J.A. ends by saying that openness will produce a laudatory result in the circumstances: “The public will be much better informed as to what words constitute defamation, and altered to the consequences of sharing information through social networking among “friends” on a 21st century bulletin board with global reach.”