IP Address of Offender be published
A.B. v. Bragg Communications Inc., [2012] 2 SCR 567, 2012 SCC 46
A 15-year-old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl’s appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father’s real names. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media.
Held: The appeal should be allowed in part.The critical importance of the open court principle
and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.
[1] Abella J. — On March 4, 2010, a 15-yearold girl, A.B., found out that someone had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. Accompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references. The page was removed by the internet provider later that month. [2] Once notified of the situation, Facebook’s counsel in Palo Alto, California provided the IP address associated with the account, which was said to be located in Dartmouth, Nova Scotia. The girl’s counsel determined that it was an “Eastlink address” in Dartmouth, Nova Scotia. Further inquiry confirmed that the respondent Bragg Communications owns Eastlink, a provider of Internet and entertainment services in Atlantic Canada. [3] Eastlink consented to giving more specific information about the address if it had authorization from a court to do so. As a result, A.B., through her father as guardian, brought a preliminary application under Nova Scotia’s Civil Procedure Rules, N.S. Reg. 370/2008, for an order requiring Eastlink to disclose the identity of the person(s) who used the IP address to publish the profile to assist her in identifying potential defendants for an action in defamation. She stated in her Notice of Application that she had “suffered harm and seeks to minimize the chance of further harm” (A.R., at p. 98). As part
of her application, she asked the court for permission to seek the identity of the creator of the fake profile anonymously and for a publication ban on the content of the fake Facebook profile. She did not ask that the hearing be held in camera. [4] Eastlink did not oppose her motion. The Halifax Herald and Global Television became aware of the girl’s application when notice of the request for a publication ban appeared as an automatic advisory on the Nova Scotia publication ban media advisory website. They advised the court that they opposed both of the girl’s requests: the right to proceed anonymously and a publication ban. [5] The court granted the order requiring Eastlink to disclose the information about the publisher of the fake Facebook profile on the basis that a prima facie case of defamation had been established and there were no other means of identifying the person who published the defamation. But it denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. [6] The judge stayed that part of his order requiring Eastlink to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously, or until she filed a draft order which used her own and her father’s real names. [7] The decision was upheld by the Court of Appeal primarily on the ground that the girl had not discharged the onus of showing that there was real and substantial harm to her which justified restricting access to the media
[8] Both courts ordered costs against the girl in favour of the two media outlets. [9] In my view, both courts erred in failing to consider the objectively discernable harm to A.B. I agree with her that she should be entitled to proceed anonymously, but once her identity has been protected, I see no reason for a further publication ban preventing the publication of the non-identifying content of the fake Facebook profile.