SCC grants protection to cyberbullied youth – two questions

The Supreme Court of Canada issued a decision in a highly-anticipated cyberbullying decision today. It held that children who are subject to sexualized cyberbullying, as a class, deserve privacy protection – at least enough protection to justify allowing them to proceed anonymously. After a quick first read of what will be a very discussed decision, I raise two questions for consideration.

Question one – What does proceed anonymously mean?

The Court used the term “proceed anonymously,” which it did not define. The applicant, notably, had merely requested that she and her litigation guardian be referred to by initials in all documents on the court record. By the Court’s somewhat qualified rejection of the applicant’s (other) request to ban publication of the allegedly defamatory Facebook postings, the Court seems to suggest that “proceed anonymously” means something more. The Court said, “If the non-identifying information [in the Facebook postings] is made public, there is no harmful impact since the information cannot be connected to A.B.” This suggests that “proceed anonymously” refers to an allowance to use initials plus a limited publication ban on identifying information.

Question two – What is the protected class?

The other question about the decision is about the scope of the class the Court intended to protect. Some text in the decision would suggest the class is limited to children subject to sexualized cyberbullying:

The girl’s privacy interests in this case are tied both to her age and to the nature of the victimization she seeks protection from. It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying

As a result, in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she personally conforms to this legal paradigm.

At the same time, the Court made a number of broad statements about the impact of bullying on children in general, whether online or in the physical world and whether sexualized or based on some other vulnerability. For example:

If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully.

Perhaps the best way to read the decision is that its binding effect extends to sexualized cyberbullying, but it is also authority for like protection in other bullying scenarios experienced by children.

AB v Bragg Communications Inc, 2012 SCC 46.

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