A.B. v. Bragg Communications, 2012 SCC 46, (Anonymity in Judicial Proceedings)

A.B. v. Bragg Communications: Anonymity in Judicial Proceedings

CIPPIC recently intervened before the Supreme Court of Canada in A.B. v. Bragg Communications Inc., a case that puts at issue the amount of anonymity litigants can claim in judicial processes. A.B. was a 15 year old victim of an online cyberbullying campaign that included the creation of an allegedly fake Facebook profile of her that attributed to her licentious sexual preferences and attitudes. A.B. sued, but wished to proceed anonymously, claiming that proceeding under her real name would defeat the very reason for the lawsuit by subjecting her to further ridicule from her peers. It would further impact on her privacy rights, implicating her right to be left alone and her dignity and self-worth.

CIPPIC argued that, while care must be taken not to impact too heavily on freedom of expression and on the open court principle (which holds that justice must be seen to be done), conflicts between fundamental rights such as privacy and freedom of expression must be carefully weighed in context. In particular, the Court's historic aversion to permitting anonymous litigants except in isolated scenarios needs to be re-examined. This historic aversion was perhaps best captured by (then) Justice Dickson in AG Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175:

Let me deal first with the 'privacy' argument. This is not the first occasion on which such an argument has been tested in the courts. Many times it has been urged that the 'privacy' of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.

As the Nova Scotian courts below held, this meant that a litigant had to provide evidence of a 'serious threat' to an ancillary interest in order to justify anonymity. Demonstrating a harm to the right to privacy itself was insufficient.

In light of the growing permanence, accessibility and searchability of court judgements and dockets, however, the privacy concerns in such scenarios are heightened and must be carefully weighed against countervailing freedom of expression concerns, in context. Proceeding anonymously, particularly in a civil lawsuit, will often impact only slightly on freedom of expression and the open court principle, as there will be little public interest in the identity of the specific individual. Refusing plaintiffs to proceed anonymously, on the other hand, can have significant and lasting impact on their privacy, as noted recently by the U.K. Queen's Bench (A Child v. Cambridge University Hospitals NHS Foundation), [2011] EWHC 454 (U.K. Q.B.):

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Although the Claimant is only seven now, time passes quickly, and in eleven years the child will be an adult. Any report of the present proceedings which identifies the Claimant in a newspaper is, with modern Internet technology, very likely to be almost as readily accessible online in eleven or twelve years' time as it would be if it were published today.

CIPPIC's intervention called for a contextual test that assessed the degree to which, in a given case, privacy was impacted against the impact on free expression that would result if anonymity was preserved.

In its ultimate decision, A.B. v. Bragg Communications Inc., 2012 SCC 46, S.C.C. File No. 34240, the Supreme Court of Canada allowed the appeal. While reaffirming the vital importance of the open court principle, the Court, in a unanimous judgement, held that the relationship between this principle and the right to privacy -- particularly children's privacy -- as well as the realities of cyberbullying requires elaboration. The Court particularly emphasized the importance of respecting the privacy of youths, the need to avoid discouraging litigation by exposing victims of cyberbullying to revictimization as a result of litigation. Specifically, the court held that identity is but a "sliver of information" that impacts on the open court principle only minimally. Allowing broader scope for anonymous litigants would advance privacy rights and allow victims of cyberbullying to access the justice system. Furthering these values outweighs the minimal harm that may result to the open justice principle if the identity of litigants is protected from the public eye.

Resources

• A.B. v. Bragg Communications Inc., 2012 SCC 46, S.C.C. File No. 34240
• CIPPIC's Materials:
  • CIPPIC's Motion for Leave to Intervene
  • CIPPIC's Factum
• A.B. v. Bragg Communications, Lower Court Decisions:
  • Nova Scotia Supreme Court, 2010 NSSC 215
  • Nova Scotia Court of Appeal, 2011 NSCA 26
• Open Justice, Privacy & Online Publication of Decisions:
  • K. Eltis, "The Judicial System in the Digital Age: Revisiting the Relationship between Privacy and Accessibility in the Cyber Context", (2011), 56 McGil L.J. 289
  • P.A. Winn, "Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information", (2004), 79 Wash. L. Rev. 307
  • C. Lucock & M. Yeo, "Naming Names: The Pseudonym in the Name of the Law", (2006), 3 U. Ottawa L. & Tech. J. 53

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Page last updated August 6, 2013

Tamir Israel, Staff Lawyer