Fighting anonymity with anonymity: open justice and cyberbullying

Stop Cyberbulling logo, via WikipediaSay you are a 15-year old girl. What would you do if you find a fake Facebook profile which contains a photograph of you, a slightly modified version of your name and other particulars which identified you, which discusses your physical appearance and weight in derogatory terms, and which includes scandalous sexual commentary about you? First, you’d contact Facebook, to have the fake profile taken down and to identify the IP address associated with it. Facebook take safety and security very seriously, especially where minors are concerned, and once they have verified the cyberbullying, they will no doubt be quick to help you out. Once you have the IP address, you can identify the relevant ISP, and ask them to reveal the names of the users associated with it, perhaps to identify potential defendants for an action in defamation or invasion of privacy. But what if Facebook or the ISP decline, and require you to get a court order before they give you that information. At this point, you run into a problem. Since justice is administered in public, you will have to disclose your identity and the facts surrounding the cyberbullying if you are to succeed in your claim against the Facebook or the ISP. So, you decide to ask the court if you can bring the claim anonymously.

If you made that application in Ireland, it is not clear whether you would succeed. In Mc Keogh v John Doe [2012] IEHC 95 (26 January 2012), Peart J had made ex parte interim orders prohibiting publication of or concerning a YouTube video clip and accompanying text. The clip showed a passenger running from a taxi without paying his fare, and the accompanying comments falsely identified the passenger as the plaintiff.* In this further application, the plaintiff sought similar orders against newspapers which were not parties to the earlier proceedings but which had reported on them. His application failed (update (16 May 2013): it failed at that stage; however, the case is continuing, and further similar applications seem to be meeting with more success). Peart J held that that a litigant does not have any right to anonymity in relation to court proceedings since justice must be administered in public under the Constitution, even in cases where, like the plaintiff, a party has genuinely believed that his or her right to privacy and good name would be breached if his or her involvement as a party to the proceedings became public knowledge (following Roe v The Blood Transfusion Service Board [1996] 3 IR 67 (Laffoy J) and Re Ansbacher (Cayman) Limited [2002] 2 IR 517, [2002] IEHC 27 (24 April 2002) (Clarke J)). Since the newspapers’ reports were a consequence of the administration of justice in public, he refused the plaintiff’s application. Indeed, he went further:

I should say that the plaintiff at no time sought to institute these proceedings in a way that does not disclose his identity, and did not make any application on the 11th January 2012 that his name should not be disclosed in any reporting of the application or the proceedings. That was not due to any oversight on his part or on the part of his legal team. Indeed, there is something counter-intuitive about the idea that a person who seeks reliefs from the Court aimed at vindicating his good name, by way of damages or otherwise, would seek to do so anonymously.

So, at first blush, at Irish law, it seems that you would be unable to bring your case against Facebook or the ISP anonymously. What about other jurisdictions, such as Canada? The hypothetical in the first paragraph is based on the facts of AB v Bragg Communications Inc, in which the bullied teenager, suing through her father, sought an order against the defendant ISP to disclose the identity of the owner of the IP address, so that she could take a defamation action against the cyberbully. This request had been unopposed, and was granted by LeBlanc J at first instance (2010 NSSC 215 (04 June 2010)). But he denied her request to pursue the proceedings anonymously or to restrict publication of the contents of the fake profile. She appealed, but the Nova Scotia Court of Appeal upheld LeBlanc J’s decision (2011 NSCA 26 (04 March 2011)). She appealed again, to the Supreme Court of Canada. And this time, she won (2012 SCR nyr, 2012 SCC 46 (27 September 2012)). Abella J (McLachlin CJ, LeBel, Deschamps, Fish, Rothstein and Karakatsanis JJ concurring) acknowledged the critical importance of the principle of open justice, but held that it was outweighed in this case by the need to protect children’s privacy and to protect them from cyberbullying. So she allowed to proceed anonymously in her application for an order requiring the ISP to disclose the identity of the relevant IP users, but she declined to impose a publication ban on that part of the fake Facebook profile that contains no identifying information (see All About Information | Canadian Privacy Law Blog | CCLA/ACLC | Inforrm’s Blog | Legal Feeds | Slaw |

Abella J described the principle of open justice as a hallmark of a democratic society which is inextricably tied to freedom of expression and freedom of the press (referring to Edmonton Journal v Alberta [1989] 2 SCR 1326, 1989 CanLII 20 (SCC) (21 December 1989) and In re Vancouver Sun [2004] 2 SCR 332, 2004 SCC 43 (23 June 2004)), and she held that the inquiry before the court was whether the request for anonymity was necessary to protect an important legal interest and impairs free expression as little as possible (referring to Dagenais v Canadian Broadcasting Corp [1994] 3 SCR 835, 1994 CanLII 39 (SCC) (8 December 1994) and R v Mentuck [2001] 3 SCR 442, 2001 SCC 76 (15 November 2001)). The relevant legal interests were twofold, the girl’s privacy interests in particular, and the protection of children from cyberbullying in general.

First, Abella J held that girl’s privacy interests in this case were tied both to her age and to the nature of the victimization from which she sought protection: “It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying” (para [14]). But she went further, and held that, as the recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law, there is no need for a particular child – such as the plaintiff in this case – to demonstrate that she was personally inherently vulnerable: “The law attributes the heightened vulnerability based on chronology, not temperament” (para [17]); hence, “while evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernible harm” (para [15).

Second, and more generally, Abella J accepted that it is logical to infer that children may suffer harm through cyberbullying. She characterised it as a psychologically toxic phenomenon which “can be particularly harmful because the content can be spread widely, quickly – and anonymously” (para [22]). Moreover, she was equally cognizant of the “resulting inevitable harm to children – and the administration of justice – if they decline to take steps to protect themselves because of the risk of further harm from public disclosure” (para [23]). Since the Court had upheld statutes protecting the identity of victims of sexual assault, in part on the grounds that this encourages reporting of such crimes (see Canadian Newspapers Co v Canada [1988] 2 SCR 122, 1988 CanLII 52 (SCC) (1 September 1988)), it was not much of an analytical leap for Abella J to conclude “that the likelihood of a child protecting himself or herself from bullying will be greatly enhanced if the protection can be sought anonymously” (para [25]). She therefore concluded:

[27] If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully.

It is clear, therefore, that the reasons for the anonymity order are not so much to do with privacy per se as they are to with the privacy of children, and with the general social protection of children from cyberbullying. That suggests that had the plaintiff in McKeogh been a child, he would have had a much better chance of succeeding in his application – he would have been able to rely on section 45(1)(c) of the Courts (Supplemental Provisions) Act 1961 (also here) to ground his application, and upon the reasoning of Abella J to bring it home. Conversely, had the plaintiff in AB been an adult, she would likely not have succeeded in hers. It is not fanciful to suggest that adults can be the victims of cyberbullying: four students in a Dublin school were recently suspended for posting abusive remarks on Facebook not about their fellow pupils but about their teachers.

So, the key to the case is that the plaintiff is a child. Moreover, in that context, as Paul Schabas and Adam Lazier point out, perhaps the key legal move in Abella J’s analysis is the focus upon “objectively discernible harm” in the case of cyberbullied children rather than upon specific harm to an individual child plaintiff. The context suggests that this reference to objective harm is confined to cases concerning children, but it would not be surprising to find other plaintiffs seeking to rely upon it to seek to justify anonymity orders and publication bans. For example, it is not implausible that an adult victim of cyberbullying would seek to establish that the objectively discernible harms of cyberbullying identified by Abella J (“psychological toxicity” [20]; “loss of self-esteem, anxiety, fear” [21]; “attempted suicide” [id]; fear of reporting [24]-26]) apply just as much to adults as to children (indeed, in FX v Clinical Director of the Central Mental Hospital [2012] IEHC 272 (8 July 2012) Hogan J drew analogies between the position of children and that of vulnerable adults).

More generally, reliance on the standard of “objectively discernible harm” is not a million miles away from the kind of arguments about commercial harm on which Paddy McKillon unsuccessfully sought to rely to prevent publication of confidential business information revealed in court (see McKillen v Misland (Cyprus) Investments Limited [2012] EWHC 1158 (Ch) (26 April 2012), blogged here and here; see also In re Skytours Travel Ltd, Doyle v Bergin [2010] IEHC 531 (9 July 2010)). Nor is it a million miles away from the kind of arguments about the administration of refugee tribunals that are relied upon by the State to justify the secrecy of refugee hearings. So, the controlling principle in AB will need to handled with care if it is not to overwhelm the principle of open justice.

In many ways, however, this was the easiest of cases. As Simon Fodden comments:

It will, I think, be the rare person who finds this decision a cause for concern. In the actual case, the public interest in knowing the victim’s name clearly approaches zero; and any concern would be of the “thin edge of the wedge” variety. Yet the case is easily distinguishable from worrying scenarios by the involvement of a minor and, more, a young woman victimized by sexual harassment, social facts notorious as the occasions for the abuse of power in our society. I would have hoped that the press would pick their battles with more care.

For many kids, just as for many adults, Facebook is a wonderful way to keep in touch with friends and family. But giving people what Facebook calls the power to share and make the world more open and connected also gives them what Barnardo’s calls the power to spread rumours, make threats or harass others. At least with AB, the law has taken an important step in countering the evil of cyberbullying. In permitting the victim to remain anonymous in her legal proceedings to identify the anonymous cyberbulling, she is able to fight anonymity with anonymity – a fitting outcome all round.

* Update (10 October 2012): This sentence has been amended in light of the comment below.