PART II: What’s the Harm? A look at Cyberbullying and A.B. v Bragg Communications
Part I of the MJLH Series: Dealing with Bullying offered an overview of bullying as a current health issue in Canada. The series now continues with ways in which the law addresses bullying. In Part II, guest-blogger Laura Crestohl outlines the Supreme Court of Canada’s recent assessment of cyberbullying and the harm it causes to young Canadians.
Cyberbullying has been a big issue in the news recently, especially since being brought to the forefront by the case of Amanda Todd, a British Columbia teen who took her own life after being tormented for years after exposing herself to a stranger online.
Earlier this year, the Supreme Court of Canada (“SCC”) examined the phenomenon of cyberbullying for the first time in the case of A.B. v Bragg Communications(2012 SCC 46). The case surrounded a 15-year old girl, who was the subject of a fake Facebook account that featured insulting pictures and messages, including some that were sexual in nature.
WHAT WAS THE CASE ABOUT?
A.B. was making two requests to the court:
- To be able to request the identity of her cyberbully while remaining anonymous
- To place a publication ban on the contents of the fake Facebook profile.
A.B. argued that denying her either of these measures could cause her further victimization and harm. Both the Supreme Court of Nova Scotia and the Court of Appeal applied the Daguenais/Mentuck test, whichrequires harm to be shown in order to justify limiting the open court principle. The lower courts held that AB had failed to prove that she had suffered real and substantial harm. As a result, AB was denied both her requests.
The Supreme Court of Canada allowed the appeal, in part. The SCC found that while keeping AB’s identity unknown was important to protect her, there would be no need to ban publication of non-identifying elements of the fake Facebook profile.
HOW DID THE SUPREME COURT ASSESS THE HARM?
Justice Abella, writing for a unanimous court, recognized that cyberbullying caused objective harm to young people: “It is logical to infer that children may suffer harm through…the psychological toxicity of [cyberbullying]” (para 20). She specified why this harm can be worse than the hurt caused by traditional bullying by quoting the Nova Scotia Cyberbullying Task Force:
cyberbullying is particularly insidious because it invades the home where children normally feel safe, and it is constant and inescapable because victims can be reached at all times and in all places (para 22).
The court also specifically addressed the effect that publicizing cyberbullying cases can have on the mental health of teens and children. The court found that
Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities (at para 26).
WHAT CAN THE LAW DO TO HELP VICTIMS OF CYBERBULLYING?
The court stressed how protecting children’s rights has deep roots in Canadian law (at para 17). In this case, letting victims pursue their cyberbullies anonymously could offer them:
- Protection from further harm and re-victimization;
- Access to justice;
- Encouragement to pursue their assailants in court; and
- Encouragement to pursue other remedies such as therapy (at paras 25-27).
By clarifying that it will recognize the objective harm caused by cyberbullying, the Supreme Court has reinforced the objective of protecting children and recognizing their distinct vulnerability. One can only hope that opening up the avenue of anonymously pursuing cyberbullies in court will help victims achieve justice and deter others from partaking in cyberbullying in the first case.
Stay tuned for Part III of Dealing with Bullying, which will look at general policy concerns and what approaches legislatures might take in combatting bullying.
AB v Bragg Communications Inc, 2012 SCC 46.