Supreme Court Protects Privacy and the Cyberbullied in Discovery Judgment

The Supreme Court of Canada recently issued A.B. v. Bragg Communications Inc., 2012 SCC 46, in which it reasserted the need to protect privacy, as well as the sensitivities of cyberbullying victims within the discovery process. Historically, the ever-important principle that justice must be public prevented victims of certain wrongs from protecting their identity when pursuing lawsuits. In its intervention, CIPPIC argued that in an age of heightened privacy concerns, the impact of forcing litigants to air their dirty laundry in a public, permanent online record will in many cases exceed what is typically a narrow public interest in knowing the identity of a litigant. Further, in scenarios involving cyberbullying, preventing litigants from proceeding pseudonymously will in many cases prevent access to the law, as a desire to avoid re-victimization may push the objects of cyberbullying to forgo enforcement of their rights altogether.

While reaffirming the vital importance of the open court principle, the Court, in a unanimous judgement penned by Madam Justice Abella, held that the relationship between this principle and the right to 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. Allowing broader scope for anonymous litigants would advance privacy rights and allow victims of cyberbullying to access the justice system. Furthering these values outweigh the minimal harm that may result to the open justice principle if the identity of litigants is protected from the public eye.