There’s Nothing in That Name

This morning, the Supreme Court delivered a decision that is a further small step in the debate about the right of litigants to privacy and the right of the public to know what goes on in our courtrooms. I blogged about these issues here and here.

The applicant in the case, A.B. v. Bragg Communications Inc., 2012 SCC 46, is a teenage victim of cyber-bullying. Someone created a fake Facebook profile using her name and picture and wrote all manner of nasty things there. In order to sue that person for defamation, she applied for a court order to compel the internet provider associated with the I.P. address that was used to create the fake profile to disclose the name of the person to whom the address belonged. As part of that application, she also requested the right to proceed anonymously and a ban on the publication of the contents of the fake profile.

The internet provider did not oppose this application, but Global Television and the Halifax Herald did oppose the application for the right to proceed anonymously and the publication ban. They succeeded both at first instance and on appeal, with the courts concluding that the applicant failed to show how the publication of her name and details of the bullying she suffered would harm her. (The media then failed to defend their position before the Supreme Court, which appointed an amicus curiae to do it. Perhaps it dawned on them, rather late in the game, that this was not the best case to defend the freedom of the press.)

The Supreme Court allowed the appeal in part, in a unanimous decision by Justice Abella, holding that evidence of harm to the individual applicant was not necessary in a case such as this to support the right of the applicant to proceed anonymously. “Objective harm”―that is, a legal presumption of harm―is sometimes enough to justify banning the publication of certain details about legal proceedings. This is a case that warrants drawing the presumption. The law is especially solicitous of children’s privacy because it recognizes their vulnerability, and “[i]t is logical to infer that children may suffer harm through cyberbullying” (par. 20). Furthermore, says Justice Abella (par. 20)

we must consider 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.

As for the public interest in open courts, it is not much affected by allowing a victim of cyber-bullying to proceed anonymously. Just as in sexual assault cases where the publication of the victim’s identity is prohibited, the media can still attend the hearings, see and hear the evidence, and present the details of the case, except the victim’s name, to the public. Once the applicant is allowed to proceed anonymously, there is no need for a further publication ban, says Justice Abella, because the harm that she might suffer would result from tying the allegations of the fake profile to her, and not for their mere airing.

That seems like the right decision, so far as it goes. The interesting question, however, is whether it can go further. There is some ambiguity, as is usual in common law cases, especially those addressing novel issues, about which of the arguments that the decision relies on are essential and which are not. In other words, is this a case about cyber-bullying of children, or about any form of unpleasantness involving children, or about cyber-bullying generally, or about something broader still?

The decision makes much of the special vulnerability of children and of the special harms of cyber-bullying. But must the two be present in a case in order to trigger the presumption that harm to the victim will result from the publication of his or her name? What if the case is about old-fashioned schoolyard bullying? Or what if it’s cyber-bullying, but the victim is an adult? Justice Abella also mentions the risk that victims will be discouraged to come forward if the nasty things said about them will end up all over the media. That’s surely right, and not only in cyber-bullying (and sexual assault) cases. It affects defamation cases generally, for instance, since the media is entitled to report on the allegedly defamatory statements if they are the object of litigation. And the idea that the harm to freedom of expression and freedom the press from the anonymization of court cases is minimal can be applied in all sorts of cases, as I discuss in my previous posts on this topic.

Only future cases will tell what the courts will make of these possibilities.

The Court of Public Opinion

What is the place of the court of public opinion in the judicial hierarchy? Sometimes, courts of justice are in effect sitting in appeal of judgments of the court of public opinion. This is perhaps the case in defamation cases, and most obviously in cases involving judicial review of the constitutionality of legislation. But sometimes the court of public opinion is higher than the highest courts of justice. A story  reported by Radio-Canada is instructive.

Lassonde, The makers of the Oasis juices sued the makers of “Olivia’s Oasis” soaps to try to prevent them from using this name and to recoup their profits from such use as had already occurred, alleging that the mark was confusing. It lost. But the trial judge not only rejected the suit; in addition, upon a request made by the defendant’s lawyer at the end of the trial, the judge ordered Lassonde to pay the defendant $125,000 – $25,000 in punitive damages, and $100,000 in extra-judicial fees – on the basis of a provision of the Code of Civil Procedure which allows courts to sanction “improper” actions or pleadings. The trial judge found that

[p]laintiffs, using their economic power and experience used a shotgun approach to attack Defendant simultaneously on several fronts with their full might, attempting by the present proceedings to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark. Obviously Plaintiffs expected that, given the threat which the action represented to Defendant’s very corporate existence, given that Defendant was still a fledgling business, given the projected cost of such proceedings and, given the obvious disparity in the respective power and resources of the parties, that Defendant would retreat and succumb to their demands, and cease using its mark and change its corporate name or, perhaps would ensure its survival and avoid an economically and resource draining battle by signing a licensing agreement with Plaintiffs – as others have done in the past.

Lassonde appealed against this portion of the judgment, and won, in a unanimous decision by the Québec Court of Appeal. The court points out that there was no evidence of bad faith on the part of the appellants, who simply acted consistently with the usual practice in such cases. Besides, there was no evidence to justify the amounts of the damages set by the trial judge (who, indeed, went beyond what the plaintiffs had asked on this point).

End of story? No. La Pressed seized on the story, in a “David against Goliath” report unabashedly sympathetic to the soap-maker which does not once present Lassonde’s position or the views of a lawyer on what constitutes standard practice in such cases. Lassonde’s Facebook page, says Radio-Canada, was deluged with negative comments and even calls for boycott by minor celebrities. Whereupon it swiftly capitulated, and agreed to pay the $125,000.

Thus in a few hours the court of public opinion heard and allowed an appeal from the Québec Court of Appeal, without minding such troublesome technicalities as listening to the other side or looking for evidence of allegations on which a claim is based. And in this instance, its judgment is not subject to appeal.