2011 March 4
A.B. Bragg Communication Inc., 2011 NSCA 26
The Nova Scotia Court of Appeal unanimously upheld a lower court decision [2010 NSSC 215] refusing an application by a 15-year old plaintiff to continue her defamation action under a pseudonym and for an order imposing a publication ban on the allegedly defamatory words posted on Facebook. The Court of Appeal described this case as “pit[ting] a teenager who finds herself the victim of on-line bullying against the public’s right to be informed by a free and independent press given unrestricted access to open court proceedings.” With respect to Facebook, the Court of Appeal noted that its “popularity and meteoric success is reflected in the slew of business articles reporting the untold wealth amassed by its creators; its current depiction in a Hollywood film; and its recent emergence as a force of truly global proportions in mobilizing mass protest fixed on toppling ruling elites.”
This action related to “the creation of a fake Facebook profile by an unidentified perpetrator, which included a photograph of the [15-year old plaintiff], a slightly modified version of her name, and other particulars which identified her. The fake profile also discussed the [15-year old plaintiff’s] physical appearance, her weight, and allegedly included scandalous sexual commentary of a private and intimate nature.” The request for use of a pseudonym and publication ban was part of the 15-year old plaintiff’s application for an order compelling Bragg Communications to disclose the identity of the person who used the IP address, located in Dartmouth Nova Scotia, involved in the creation of the fake Facebook account. The lower court ordered Bragg Communications to disclose that identity as part of the same ruling which denied use of a pseudonym and publication ban.
On this appeal, the 15-year old argued unsuccessfully that the lower court erred by failing to take into account the special vulnerability of children and by ignoring an obvious and serious risk of harm. The appeal was opposed by the Halifax Herald Limited and by Global Television.
In its ruling dismissing the appeal, the Court of Appeal considered, among other things, the nature of libel litigation: “Defamation is a claim that one’s reputation has been lowered in the eyes of the public. To initiate an action for defamation, one must present oneself and the alleged defamatory statements before a jury and in open court. To be able to proceed with a defamation claim under a cloak of secrecy, strikes me as being contrary to the quintessential features of defamation law. A.B. would wish to have her identity shielded from the public, and the fake Facebook profile banned from publication, apparently as a protection from further embarrassment and public scrutiny. But, when A.B. chose to avail herself of the court process in the pursuit of damages for defamation, she submitted to whatever public scrutiny attaches to civil litigation and must accept the attendant diminished expectation of privacy.”
The Court of Appeal held that although the restrictions sought by the 15-year old might be appropriate in family law, or in cases involving sex crimes, they had no application to a defamation action. “A statement of claim in a defamation case requires the pleader to refer explicitly to the published words which are said to have harmed the plaintiff’s reputation” and it would be contrary to the public interest “to permit a plaintiff … to pursue her claim anonymously, with her identity kept secret.” The Court continued: “Let me conclude these reasons by suggesting that the effect of the judge’s decision will be to produce a laudatory result. Whether attending court to watch the trial, or reading published reports of the proceedings, citizens will associate A.B.’s name with the words of the fake profile, but not in the way the bogus poster ever intended. Presumably, the fake Facebook page was created and posted with a view to persuading people that these were A.B.’s own words and expressions, or simply intended as a parody of a real profile. It will be for a jury to ultimately decide whether the impugned words are defamatory, or are defensible as truth, parody, fair comment or otherwise. But news reporting of A.B.’s efforts to unmask an anonymous poster and seek money damages for the harm to her reputation puts the story in a completely different light. There is no suggestion that these are her own words: quite the opposite. And so readers will be told that A.B. is taking legal action to obtain redress for the alleged lies that have been posted. Should she be successful, one might expect that she will be lauded for her courage in defending her good name and rooting out on-line bullies who lurk in the bushes, behind a nameless IP address. 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.”