Canada’s Supreme Court Weighs Privacy Rights Against Open Courts

Canada’s top court has again been called on to consider competing constitutional rights in a case that pits a litigant’s right to privacy against the openness of court proceedings.

The Supreme Court of Canada’s ruling in A.B. v. Bragg Communications Inc., released this week, weighed the rights of victims to seek legal remedies anonymously against the open court principle. The ruling reaffirms existing jurisprudence that holds that while the open court principle is an important component of freedom of expression in a democratic society, the right of the public (including the media) to access court proceedings is not absolute.

In this decision, the Court held that a child victim of cyberbullying could anonymously seek a court order requiring an Internet service provider to disclose the identity of the creator of allegedly defamatory material on the Internet. The Court ruled that the minimal harm to the open court principle that would result from prohibiting disclosure of the plaintiff’s identity was outweighed by the serious harm that disclosure would cause to the plaintiff and the administration of justice from failing to protect the vulnerable – in this case a child victimized by bullying.

The Court did, however, decline to order a publication ban on non-identifying content on the allegedly defamatory webpage, on the basis that no harm to the child would result from this disclosure.

This decision represents a further step in the developing jurisprudence that recognizes the privacy rights of an individual – described by the Court as rights that implicate Charter-protected liberty and security interests – in a society where information can be electronically disseminated to a virtually unlimited audience in a matter of seconds. The Court ruled that the privacy rights of children who are victims of cyberbullying take precedence over the aspect of the open court principle, which otherwise requires plaintiffs to identify themselves in court pleadings. In so doing, the Court analogized the situation to criminal law precedents whereby the identity of some victims of sexual assault is not disclosed.

The ruling may prove to be narrow in its application. In allowing the plaintiff to proceed anonymously, the Court relied on objectively discernible harm to the plaintiff based on the inherent vulnerability of children and multiple studies on the effects of cyberbullying. The Court also held that the failure to grant anonymity to victims of cyberbullying may deter children from seeking legal remedies for the harm they suffer. The decision does not consider the issues more broadly, such as whether the privacy rights of individuals will outweigh the open court principle where the plaintiff is not a member of an inherently vulnerable group or whether, in such cases, evidence of subjective harm to the plaintiff will be required.

The value put on individual privacy rights in this context stands in contrast to the recent jurisprudential trend away from valuing the commercial privacy interests of parties engaged in civil litigation. A recent Ontario Court of Appeal decision (Out-of-Home Marketing Association of Canada v. City of Toronto) overturned a sealing order on the basis that the moving party did not show sufficient evidence of how the confidential information in question could be used by its competitors to its disadvantage or how great a risk disclosure would present. A court must be satisfied that the elements of the long-standing Mentuck/Sierra Club test for sealing orders have been fully met before granting an order that would restrict the open court principle in favour of protecting sensitive business information.



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