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The Facebook bullying case – some tough issues to ponder

Facebook-bullyingIn a case that has gained significant media attention, the Nova Scotia Court of Appeal has held that the name of a 15-year-old girl, who was allegedly defamed and bullied online, should be revealed to the public.

The plaintiff in this case is a teenage girl that discovered that someone had created a fake Facebook page in her name and had posted comments and pictures on that page that allegedly bullied, harassed and defamed her. Once discovered, the girl’s parents brought an application to the Court for an order revealing the identity of the anonymous person who created the Facebook page and posted the defamatory comments. The application also sought a publication ban (or sealing order), which would prohibit the Court and anyone involved in the case from revealing the identity of the plaintiff.

The plaintiff was successful in obtaining an order for the identity of the person who posted the defamatory comments. But the court refused to order a publication ban. The plaintiff appealed that issue and the Court of Appeal has denied her appeal. The plaintiff is now in the process of appealing to the Supreme Court of Canada.

The plaintiff has argued that, if her identity is revealed to the public, further harm would be caused to her, since the bullying and defamation would continue in some form or another, by the media’s coverage of the case and, possibly, by her peers.

The principle of “open court” is one that Canadian courts have always taken very seriously. There is a presumption that, once someone starts a lawsuit, the public has the right to know what happens in that lawsuit. It is only in exceptional cases that a court would seal its own record or order a publication ban.

In my view, this should be one of those exceptional cases. The plaintiff is a teenager who has already endured significant embarrassment, bullying and harassment by the defamatory Facebook page. Her bravery in taking on her bullies in court is commendable. But, if her name is revealed, and the media continue to report on her case as they have, she will be forced to relive this ordeal and pain over and over again. Given her age, such an ordeal could have long-term psychological effects.

The Nova Scotia Court of Appeal saw it differently. The Court reasoned that, should the plaintiff be successful at trial, “one might expect that she will be lauded for her courage in defending her good name and rooting out online bullies who lurk in the bushes, behind nameless IP addresses. The public will be much better informed as to what words constitute defamation, and alerted to the consequences of sharing information through social networking among ‘friends’ on a 21st Century bulletin board with a proven global reach.”

Basically, the Court of Appeal has decided to make an example of the plaintiff’s case. But in making that finding, the Court failed to recognize that this plaintiff is not an emotionally mature adult, who might be able to endure the stress and embarrassment involved in such a lawsuit. She is a vulnerable young person, who our society and our courts must protect. And given the recent wave of teen suicides due to bullying in the United States, we should be giving that issue particular attention, since the potential consequences are grave.

I am hopeful that the Supreme Court of Canada overrules this finding and provides protection for the most vulnerable in our society: our children.

Maanit Zemel, Associate
Miller Thomson LLP

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
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2 thoughts on “The Facebook bullying case – some tough issues to ponder
  • Marsha Milner says:

    The person who committed the crime should be held accountable…they know what they did to her. If she wants to go public then that should be her decision. When you are beat down by bullies it takes along time to bounce back and become strong again. Punish the person who did this to her and get them the appropriate help to deal with their own emotional issues…its time to say “this is not okay and your name will be published…don’t punish this girl…she has been through enough. Stand Up for your rights and don’t back down. I applaud your efforts!!!

  • Adam Gorley says:

    While I agree that this young person might suffer if her personal details were widely revealed, and I guess under law she qualifies as a “child”, I’m not sure that we should be handling teenagers with kid gloves.

    Certainly she deserves all the moral, emotional, and psychological support she needs, but I’m not sure that the vague possibility of future harm is quite enough to justify an exception to the “open court” principle.