‘Cyberbullying’ case pushes the limits of publication bans

For every dozen things the Internet has simplified (porn, banking, directions to the cottage) it has complicated something profoundly. Take, for example, the most recent casualty, the law and who deserves its protections—specifically, the notion of the publication ban. Historically, publication bans have been reserved for victims of sexual assault or witnesses whose survival is wholly dependent on their anonymity. Now, thanks to another Internet by-product—bullying 2.0, a.k.a. “cyberbullying”—the traditional publication ban may soon protect not only victims of sex crimes, but victims of cyberbullying as well. That at least is the aim of one Nova Scotia family and their lawyer, Michelle Awad. “We hope to get a ruling from the Supreme Court of Canada,” Awad told me over the phone last week, “that a minor who is the victim of anonymous online bullying can unmask the bully anonymously.”

Awad represents a 17-year-old girl and her father, both of whom have been trying since 2010 to track down the girl’s cyber-bully: an anonymous Facebook user who posted the girl’s picture to a Facebook page along with a slew of sexually derogatory remarks about her, remarks a Nova Scotia judge deemed defamatory. Father and daughter applied for a court order that would enable the Internet provider to hand over the identity of the bully who created the page. But that’s not all they applied for: they also requested the contents of the page—i.e. the defamatory text in question—remain secret and unavailable to the public. In other words, not only did they want a publication ban on the teenage girl’s name (understandable in that she’s a minor, and her name isn’t the issue regardless); they wanted one on the details of the defamation itself.

Their reason? According to Awad, revealing the contents of the page to the public would force the girl to relive the cyberbullying episode. It would, said Awad, unnecessarily “re-victimize” her. When the Nova Scotia court denied their request, the family took its case to the Supreme Court of Canada. Their hearing was last week. When the judgment will be rendered isn’t known. Meanwhile, 10 outside groups have intervened as amici curiae— “friends of the court.” Seven of them—the federal privacy commissioner included—sided with the teenage girl.

Seven out of 10. That is a big majority, and a sign, perhaps, that our society’s recent empathy for bullying victims has taken on a new zeal, and now threatens to make a joke of our justice system. Don’t get me wrong: like Kid’s Help Phone, the federal privacy commissioner and UNICEF Canada (a few of the parties in favour of the ban), I’m not partial to bullies and I sympathize with the girl in question. But that isn’t sufficient cause—on its own—to freeze the flow of freedom of information from our courts and give victims of defamation even more protection than victims of sexual assault. Society’s institutional shift toward victims’ rights—evident in the Harper government’s crime legislation and North American culture’s increasing zeal for anti-bullying witch hunts—threatens to protect bullying victims at the price of public information.

Carmen Cheung, counsel with the British Columbia Civil Liberties Association (one of three groups that argued against the ban in court) tends to agree: “Whenever it comes to speech,” she says, “it’s always important to know what constitutes defamation because defamation is a limit on speech. It is absolutely necessary for the public to understand what kind of speech is defamatory.” Cheung is sympathetic to the girl’s case and has no issue with minors keeping their identities out of the public sphere during a trial (she agrees that the girl should be protected under an anonymity order) but isn’t sure why a publication ban on the defamatory material is necessary when the girl’s name and face are unknown. She doesn’t buy the “re-victimization” argument peddled by the anti-bullying groups and the girl’s lawyer. Neither do I. (Though I did for a few minutes after speaking with Awad on the phone. She’s very convincing.) No matter how bad the bully, credulity tilts away from the girl toward the law.

When I asked Awad what her client’s ultimate goal was, she said it was to “level” the playing field: “anonymous bully gets unmasked while girl stays anonymous.” Or, you humiliated me without identifying yourself, now I’ll do the same to you. This certainly feels like justice of a kind, but with a private twist. It’s not levelling the playing field. It’s getting even. No matter how sympathetic the exercise might be, it’s not a job for the Supreme Court of Canada.