The 17-year-old high school student, identified in court documents as A.B., and her father were asking Canada's top court to protect their identities in a court order that would force an internet company to reveal the identity of the person who created a fake Facebook account with her likeness.
The teenager was 15 when she discovered the fake Facebook page had been created using her own profile photo and a slightly different spelling of her name. The page contained defamatory material about her physical appearance and sexual practices. Facebook took the page down and offered up the IP address of its creator.
A judge agreed to A.B.'s request for a court order compelling internet service provider, Eastlink, to identify the owner of the IP address, but stayed the order until A.B. and her father agreed to identify themselves in the order. The judge also rejected their request that the defamatory details of the Facebook page remain secret. A Court of Appeal agreed with the judge's rulings.
Thursday's Supreme Court ruling overturns those lower court decisions and grants A.B. the right to pursue the case using only her initials, but it denied the request to ban details of the Facebook page.
In its ruling, the court said that because A.B. was a young person, she deserved protection. The court acknowledged the request was an important protection for victims of cyberbullying.
"The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying," Justice Rosalie Abella wrote in the court's decision.
The court said "it is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon," and that without protection of their identity there is the possibility of "inevitable harm … if they decline to take steps to protect themselves because of the risk of further harm from public disclosure."
In its ruling, the court also referred to a Nova Scotia report on bullying, the first any province has done. It quotes from the Nova Scotia Task Force on Bullying and Cyberbullying report: "The immediacy and broad reach of modern electronic technology has made bullying easier, faster, more prevalent and crueller than ever before … cyberbullying follows you home and into your bedroom; you can never feel safe, it is 'non-stop bullying.'"
The court noted that one of the recommendations of the report was to develop mechanisms to report cyberbullying anonymously.
However, the court decided that once A.B's identity was protected, there was little justification for a publication ban on the contents of the fake Facebook page as long as anything that could identify her was excluded.
Since the non-identifying parts of the page could not be connected to A.B's name, the court ruled that the public's right to open courts as well as freedom of the press could be maintained.