This case, argued before the Canadian Supreme Court on 10 May 2012, raises interesting issues in relation to the manner in which applications for anonymity are assessed in civil claims. The principle of open justice is constitutionally enshrined in Canada and anonymity orders are difficult to obtain. Should there nonetheless be a relaxation of this principle where a case involves a certain class of claimant, deemed vulnerable by virtue of their age? More particularly, is the protection of children a superior value which the courts must strive to preserve even at the expense of transparency?
AB is a teenage girl who was the subject of a fake Facebook profile page created by an unidentified cyber bully. It was set up using a photo taken from her real Facebook page and a “slightly modified” version of her name. It is not disputed that the page contains material that is defamatory of the Claimant, much of it sexual in nature. The Defendant, an Internet service provider, removed the profile in March 2010 and is in possession of information revealing the identity of the author of the page. The Claimant accordingly sought a court order requiring the Defendant to disclose this information.
Proceedings before the Novia Scotia Supreme Court
The Claimant has not yet commenced defamation proceedings, although for the purposes of making the order for disclosure, the Nova Scotia Supreme Court was satisfied that a prima facie case in defamation was made out. It further found that the order sought was the only means by which the Claimant could identify the author of the Facebook page. The order for disclosure was accordingly granted. However, the Claimant also sought to bring her application under a pseudonym and for a publication ban on the substance of the defamatory statements made about her. Under Rule 85.04 (1) of the Novia Scotia Civil Procedure Rules, a judge may make an order that the court record remain confidential
“only if the judge is satisfied that it is in accordance with the law to do so, including the freedom of the press and other media under section 2 of the Canadian Charter of Rights and Freedoms and the open court principle.”
Mr Justice LeBlanc, delivering judgment also considered the principles set out by the Canadian Supreme Court in Dagenais v Canadian Broadcasting Corp.,  3 S.C.R. 835 and R v Mentuck,  3 S.C.R. 442 (“the Dagenais/Mentuck test”), namely that a request for a publication ban may be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [25, citing the formulation of this test by Iacobucci, J in Serra Club of Canada v Canada (Minister of Finance)  2 S.C.R. 522]
Considering the application of the test to the facts, LeBlanc J first emphasised that although a publication ban would permit people to observe court proceedings, it would, for the majority of people have “the same effect as a sealing order, meaning that the public would never learn the details of the litigation”.  The judge also rejected the applicant’s argument that unless a publication ban were ordered, those who had downloaded and retained the profile would be likely to revisit it in light of press coverage. In Mr Justice LeBlanc’s view, it was wholly incredible that those who had already done so would not be aware of the Claimant’s identity already. Consequently, a publication ban would not be of any benefit to her. 
LeBlanc J went on to consider the public interest in receiving the information in question. He held that it was in the public’s interest to know about the functioning of social networking programmes and their potentially destructive effect on the public and young persons in particular.
“[B]ullying and this type of pernicious conduct should be exposed and condemned by society. Only if the public know of the extent of such conduct and its likely result, will society speak up for better control of such conduct arising from free and unlimited ability to publish such material on internet sites” 
Finally, the judge held that as no evidence of any harm that has been or will be caused to the Claimant as a result of publication had been put before the court, he could not hold that such harm existed. He rejected the Claimant’s argument that if she was to succeed in defamation she would be presumed to have suffered harm and be awarded damages as a result. In light of the public interest in disclosing the information and the absence of any evidence of harm, the Claimant’s request for anonymity and a publication ban was not justified in the circumstances.
The Issues on Appeal
The Claimant appealed to the Canadian Supreme Court raising the following issues:
(1) Should minor litigants seeking a civil remedy for on-line sexualized bullying be entitled to bring a motion to determine the identity of the intended defendant under a pseudonym and under a publication ban concerning the substance of the statements?
(2) In considering whether a confidentiality order and publication ban should be granted, should a Court take notice of the inherent vulnerability of young people subject to on-line sexualised bullying and the serious risk of harm to them if they are required to republish the comments and reveal their identity to seek a remedy?
(3) In considering whether a confidentiality order and publication ban should be granted for a child subject to on-line sexualized bullying can a Court invoke its parens patriae jurisdiction to protect that child?
(4) Should media who choose to intervene in a motion for a publication ban be entitled to costs if the motion is not successful, particularly when the motion involves issues broader than those of the applicant?
An amicus curiae brief was also filed on behalf of various media organizations, arguing that the decision of Mr Justice LeBlanc be upheld.
In relation to the first two issues, the Claimant argues that in striking the balance between the public’s right to know and the protection of a child’s privacy, the Supreme Court should take into account the inherent vulnerability of children and the importance of the right to reputation, enshrined within the underlying Charter value of the dignity and worth of every individual. Furthermore, the Claimant contends that there are certain social values which are “super-ordinate” to the public’s right of access to the courts and that the order sought strikes a fair balance between two rights.
The Claimant points out that she is put in an impossible position, effectively having to automatically relinquish her privacy in order to identify the person responsible for the harm she suffered. Finally, the Claimant argues that revealing her name is of such limited value to the media that it does not justify the intrusion into her own private life. Given the information that is already in the public domain, further disclosure of the sordid details and the identity of the victim cannot be justified in the public interest.
In response, the amicus curiae submits that confidentiality orders are only exceptionally granted and that one social value cannot automatically be placed above another in deciding whether such an order is justified. It would be particularly concerning were an entire class of individual – children – to be presumed as entitled to anonymity in civil proceedings. The correct approach, it submits, is that of a starting presumption of open justice, displaced only by sufficient evidence justifying an incursion on that principle.
Oral arguments were heard on May 10 and judgment is reserved.
Two points of particular interest arise in this case. The first is that this is not a privacy related claim but one for disclosure in the context of a proposed action for defamation. It is trite that the principle of public vindication applies to defamation proceedings, a factor which at least potentially limits the Claimant’s standing to claim anonymity. Of course, proceedings have not yet been issued; the Claimant is not seeking vindication of her reputation through this motion but merely the identity of the alleged tortfeasor. If the very purpose of the order is to allow the Claimant to issue defamation proceedings then this should be a relevant, if not decisive factor in deciding whether to order a publication ban and anonymity. There is also a question as to whether once disclosed to the Claimant the identity of the perpetrator would be made public. This point was not taken before the Canadian Supreme Court and was not considered in the Novia Scotia Supreme Court.
The second and overarching point is that the presumption in Canadian proceedings is one of open justice; anonymity according to the Dagenais/Mentuck test is one which places a heavy evidential burden on the party seeking anonymity to establish that such a restriction on open justice is necessary to prevent a “serious risk to the proper administration of justice”. What is striking about the formulation of this test is that the balance to be struck is between the “salutary effects of the publication ban” versus the rights of the parties and the public, which includes the right to freedom of expression, and the accused person’s right to a fair trial but does not expressly mention the individual’s right to privacy. Of course it would be unusual were this to be excluded from consideration altogether – as a Charter right it must be – but the starting point in the Canadian courts is well and truly rooted in the Constitutional principle of open justice.
The Claimant in this case essentially seeks to broaden the test in favour of certain classes of claimant that are inherently vulnerable. In this regard, it is argued that there are certain values which are of “superordinate importance”, in this case, the protection of children. As a consequence, the Claimant submits that the Nova Scotia Supreme Court erred in its requirement that the Claimant present evidence of harm – actual or potential – were her identity to be revealed. What this approach effectively amounts to is an automatic right to privacy – presumably rebuttable – where a child is involved in proceedings. With respect, this argument goes too far and is supported neither in principle nor in practice. Of course the fact that the Claimant is a child should be a factor relevant to the balancing test under Dagenais/Mentuck as it is in the Article 8/10 balancing exercise before the English courts (for example, Spelman v Express Newspapers on which Inforrm has a case comment here) Yet the fact of childhood is not decisive: other elements will inevitably come into play, for example, the public interest in publication of the story, the child’s age, and – crucially – the harm that will be caused if they are identified. Blanket protections for a class of claimant carry obvious risks for freedom of expression and open justice.
A particular difficulty arises as this is not a case where anonymity would allow the media to report more of the underlying details of the case which may well be in the public interest. It appears that those details for which a publication ban is sought are all capable of revealing the Claimant’s identity. Should the order be granted, the limitations placed on open justice are therefore more severe than they may otherwise be. On the other hand, if the details contained in the page are so damaging that publicly linking the Claimant to them would cause her further damage, evidence of this should be put before the court. This in turn raises the issue of how much and what kind of evidence the Claimant must produce. Would a witness statement suffice? Medical evidence? Would the Claimant be forced to give evidence herself? Some evidence greater than a mere assertion must be required but of this of course presents the usual mischief that the more evidence the Claimant is required to give in support, the greater the intrusion into her private life and the greater the harm caused should she be unsuccessful.
In short, there is nothing to suggest that the fact-specific balancing test previously set out by the Canadian Supreme Court would not be appropriate here. The fact that the Claimant is a child – although her exact age is not public knowledge – should be a relevant factor but it is not the only one. There is an obvious public interest in reporting the nature of the defamatory material and the fact of cyber-bullying. There is also a public interest in reporting the detrimental effect this has on the victims. However, it may be that the media is able to do this without disclosing her identity and without republishing all of the salacious defamatory details.
Quite how the Canadian Supreme Court will resolve this issue remains to be seen. It is doubtful that it would stray so far from its open justice roots in the manner suggested by the Claimant. At the very least, however, it has the opportunity to clarify how far a Claimant must go in order to remain anonymous and whether the Court is required to protect a child from the prying eyes of the public.