September 27, 2012
A.B. v Bragg Communications Inc.

Justice Abella, on behalf of the Supreme Court, held that the father of a 15 year old has the right to anonymously obtain an order requiring the Internet provider to disclose the identity of a fake profile on his daughter on Facebook so that he could identify potential defendants for an action in defamation on her behalf. He and she do not have to prove specific harm to her from publicity to justify the anonymity order, as “reason and logic” support a finding in this case of “objectively discernable harm” based solely on her age and the general harms of cyberbullying for which some social science evidence was cited. Once the anonymity is granted, however, there’s no need for a ban on the details of the application.

The court was silent as to whether an anonymity order should be made in the event a defamation lawsuit is actually begun. The media argued that it would be impossible to conduct a defamation case, based on reputation, without having a fully public proceeding.

The Nova Scotia courts below had held that obliging them to bring the action in open court, with unrestricted publication of the proceedings would inform citizens that legal action is being taken to redress the alleged lies posted on the site. She would be “lauded for her courage in defending her good name and rooting out on-line bullies who lurk in the bushes, behind a nameless IP address. The public will be much better informed as to what words constitute defamation, and alerted to the consequences of sharing information through social networking among “friends” on a 21st Century bulletin board with a proven global reach.”