McGill Law Journal Revue de droit de McGill
SEXUALIZED ONLINE BULLYING THROUGH AN
EQUALITY LENS: MISSED OPPORTUNITY IN AB V.
BRAGG?
Jane Bailey*
In AB v. Bragg, the Supreme Court of
Canada ruled that fifteen-year-old AB should be
allowed to use a pseudonym in seeking an order
to disclose the identity of her online attacker.
By framing the case as one pitting the privacy
interests of a youthful victim of sexualized
online bullying against principles protecting the
free press and open courts, the SCC approached
but ultimately skirted the central issue of
equality. Without undermining the important
precedent that AB achieved for youthful targets
of online sexualized bullying, the author ex-
plores the case as a missed opportunity to ex-
amine the discriminatory tropes and structural
inequalities that undergird the power of this
kind of bullying. Viewed through an equality
lens, enhanced access to pseudonymity for tar-
gets is not necessarily about privacy per se, but
rather an interim measure to respond to the
equality-undermining effects of sexualized
online bullyinga privacy mechanism in ser-
vice of equality.
Dans AB c. Bragg, la Cour suprme du
Canada a statu que AB, g de 15 ans, avait le
droit dutiliser un pseudonyme pour demander
une ordonnance de divulgation de lidentit de
son agresseur en ligne. En voyant dans laffaire
un conflit entre le droit la vie prive dun
jeune victime de la cyberintimidation sexualise,
et les principes de la libert de la presse et du
droit la publicit des dbats judiciaires, la
CSC a abord la question mais a contourn fina-
lement la question centrale de lgalit. Sans
ignorer le prcdent important que la Cour a
rendu pour protger les jeunes qui sont cibls
par lintimidation caractre sexuel en ligne,
lauteure envisage laffaire comme une opportu-
nit manque dexaminer le langage discrimina-
toire et les ingalits structurelles qui sous-
tendent la force de ce type dintimidation. Du
point de vu de lgalit, un accs largi
lutilisation dun pseudonyme pour des jeunes
cibls ne concerne pas forcment la vie prive
comme telle, mais est plutt une mesure provi-
soire pour rpondre aux effets de lintimidation
caractre sexuel en ligne qui minent lgalit,
cest–dire un mcanisme de la vie prive au
service de lgalit.
* Associate Professor, University of Ottawa Faculty of Law (Common Law Section). The
author wishes to thank the Social Sciences and Human Research Council of Canada for
funding the eGirls Project, the work of which this paper forms a part. She also thanks
her fantastic research assistant Miriam Martin, who drafted the papers abstract.
Citation: (2014) 59:3 McGill LJ 709 Rfrence : (2014) 59 : 3 RD McGill 709
Jane Bailey 2014
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Introduction
I.
II.
III.
IV.
Background
Judgments Below
A. First Instance and Costs Decisions of the Nova Scotia
Supreme Court
B. Decision of the Nova Scotia Court of Appeal
1. Parens patriae
2. Proof of a Serious Risk of Harm
Analysis of the Supreme Court Decision
A. The Harm to ABs Privacy
B. The Open Court Principle
Locating Sexualized Online Bullying in Structural
Inequality
A. Equality Analyses that Could Have Been Advanced
B. Why Wasnt Equality Raised?
C. What Difference Could an Equality Analysis Have
1. Age
2. Sex
3. Sexual Orientation
Made?
Conclusion
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 711
Introduction
In 2010, fifteen-year-old AB was targeted by a fake Facebook profile
that an unknown person created about her. The fake profile not only used
a variation on ABs name, but also included a photo of her and purported
to discuss her allegedly preferred sexual acts, as well as her appearance
and weight. AB asked the Nova Scotia Supreme Court (NSSC) to order
the Halifax-based Internet service provider (ISP) Bragg Communications
Inc. (Bragg) to disclose customer information related to the Internet Pro-
tocol (IP) address from which the fake Facebook profile originated. AB al-
so asked to be allowed to proceed with her disclosure application using a
pseudonym and requested a ban on the republication of the sexualized at-
tacks made in the fake profile (together, the publicity-related requests).
Two media representatives, the Halifax Herald Limited (Herald) and
Global Television (Global), intervened to oppose her publicity-related re-
quests.
At first instance, Justice LeBlanc ordered Bragg to release the sub-
scriber data sought, but denied ABs confidentiality and partial publica-
tion ban requests.1 In a subsequent judgment, he granted the requests
from the Herald and Global for costs, ordering AB to pay $1,500 to the
Herald and $750 to Global.2 The Nova Scotia Court of Appeal (NSCA)
unanimously dismissed ABs appeal (per Justices MacDonald, Saunders,
and Oland) and again ordered costs in favour of the Herald and Global.3
AB was partially successful on appeal to the Supreme Court of Canada,
which granted her confidentiality request and overturned the cost orders
made by the courts below, but denied her partial publication ban request
and declined to make any award of costs in relation to the appeal before
it.4
The Supreme Courts decision to grant ABs confidentiality request
turned on the importance of protecting children, privacy, and access to
justice in cases in which young victims seek legal redress for sexualized
online bullying.5 From that perspective, it represents an important step
forward for children seeking legal remedies in an era permeated by wide-
spread technologized dissemination of information, misinformation, and
reputational attacks. However, my focus here is on something that was
1 AB v Bragg Communications Inc, 2010 NSSC 215 at paras 22, 37, 293 NSR (2d) 222
[AB Chambers].
2 AB v Bragg Communications Inc, 2010 NSSC 356, 297 NSR (2d) 42 [AB Costs].
3 AB v Bragg Communications Inc, 2011 NSCA 26, 301 NSR (2d) 34 [AB Appeal].
4 AB v Bragg Communications Inc, 2012 SCC 46, [2012] 2 SCR 567 [AB SCC].
5 Ibid at para 14.
712 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
not said in this case. Remarkably, given the Supreme Courts focus on the
sexualized nature of the attacks, the result in AB was achieved without a
single reference to equality in any of the twelve facta filed on the appeal
to that Court, nor in any of the decisions written by the NSSC, the NSCA,
or the Supreme Court. In this case comment, I explore the case as a
missed opportunity to: (i) contextualize sexualized online bullying6 with-
in a framework of structural inequality that disproportionately exposes
girls, women, and all members of the LGBTQ community to sexualized at-
tack; and (ii) conceptualize an equality-enhancing role for privacy as an
interim response to conditions of substantive inequality. Moreover, I sug-
gest the case is symbolic of a larger individuated discourse around bully-
ing that too often neglects the role of structural inequality.
Parts I and II explore in detail the factual background and judicial de-
cisions leading up to ABs appeal to the Supreme Court in order to em-
phasize both the nature of the online attack at issue and the range of lib-
erties at stake, including freedom of the press, freedom of expression, the
open court principle, and privacy. Part III details the Supreme Court de-
cision, focusing on the careful attention paid to child protection and to a
largely negative and individuated conception of privacy, and noting the
absence of an equality argument. Part IV locates sexualized online bully-
ing within the framework of structural inequality, suggesting not only the
central role that equality analysis should play in cases of online sexual-
ized bullying (and could play in future cases with respect to many forms
of discriminatory online harassment), but also the equality-affirming role
that privacy might have played in the case. The conclusion reflects upon
the important role that equality should play, not only in future legal cases
involving sexualized online bullying, but also in the larger discourse
around bullying and cyberbullying.
I. Background
In March 2010, fifteen-year-old AB discovered that someone had cre-
ated a fake Facebook profile using a photo of her and a slightly modified
version of her name. The fake profile discussed ABs appearance and
weight7 and also included explicit references to ABs allegedly preferred
sexual acts. Someone who had received a friend request from the fake pro-
file forwarded it to AB. AB printed the request and showed it to her fa-
ther, CD. AB and CD later learned that the fake profile had been taken
down. They retained counsel, who obtained from Facebook the IP address
6 Ibid at para 14.
7 AB Chambers, supra note 1 at para 3.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 713
from which the fake profile had originated.8 The IP address was allocated
to Bragg, an ISP in Dartmouth, Nova Scotia, doing business under the
name Eastlink. Counsel for Bragg indicated that they would not release
customer information relating to that IP address without a court order.
In May 2010, AB, through her litigation guardian CD, filed a notice of
application in the Nova Scotia Supreme Court for an order compelling
Bragg to disclose the customer information relating to the IP address pro-
vided by Facebook, hoping that this information would assist her in iden-
tifying the person who had posted the fake profile. In addition, she re-
quested that the NSSC allow her disclosure application to proceed under
pseudonyms for both herself and her father (the confidentiality request),
and that the court issue an order prohibiting publication of the words
used in the fake profile (the partial publication ban request). The thrust
of ABs argument was that if these words were republished, she would
once again be exposed to the humiliating impact of the defamatory sexual-
ized attack.
Pursuant to the Nova Scotia Civil Procedure Rules,9 the media re-
ceived abridged notice of ABs publicity-related requests. Upon receiving
this notice, the Herald and Global sought leave to intervene to oppose
those requests.10 Bragg did not appear and took no position with respect
to ABs application. Only AB and the Herald appeared at the initial
chambers hearing, which was adjourned to grant AB time to file supple-
mentary materials relating to the publicity-related requests. The ad-
journment also allowed Global sufficient time to file its own brief, so that
both the Herald and Global appeared at the subsequent continuation of
the hearing, again, not to oppose ABs application for disclosure, but to
oppose the publicity-related requests.11
II. Judgments Below
A. First Instance and Costs Decisions of the Nova Scotia Supreme Court
Justice LeBlanc of the Nova Scotia Supreme Court heard ABs appli-
cation for disclosure and her publicity-related requests over the course of
three days in May 2010 and rendered a decision early in June 2010. Jus-
tice LeBlanc permitted ABs motion to abridge the notice period in rela-
8 AB Appeal, supra note 3 at paras 1011.
9 Nova Scotia Civil Procedure Rules, Royal Gaz Nov 19, 2008, R 85.05.
10 Facts in this section are taken from AB SCC, supra note 4 (Factum of the Appellant,
redacted, at paras 1823) [AB Factum].
11 AB Costs, supra note 2 at paras 1, 19.
714 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tion to her application.12 The court had little trouble finding that ABs ap-
plication for disclosure of customer information should be granted, even
taking into account the possible privacy and free expression interests of
the anonymous poster. Justice LeBlanc found that: (i) AB had made out a
prima facie case of defamation (accepting that the words used in the sex-
ualized attack referred to AB, were communicated to at least one other
person, and would tend to lower ABs reputation in the eyes of a reasona-
ble person); (ii) there was no other means by which AB could get the in-
formation needed to identify the anonymous poster; and (iii) the public in-
terest was not served by allowing someone to maintain anonymity to libel
and destroy the reputation of another person.13 However, Justice LeBlanc
dismissed both of ABs publicity-related requests.
Justice LeBlancs reasons for the decision with respect to the publicity-
related requests do not appear to consider the confidentiality request and
the partial publication ban request individually, but rather seemed to
evaluate them and their potential effects as a package. The court found
that it was bound to apply the test relating to publication bans from the
Supreme Courts decision in Sierra Club14 and the Nova Scotia Court of
Appeals decision in Osif,15 which Justice LeBlanc determined allowed for
a publication ban only if: (i) the order was necessary to prevent a serious
risk to the proper administration of justice, which was both well-grounded
in the evidence and went beyond the interests of the applicant because
reasonable alternative measures would not prevent the risk; (ii) if an or-
der were necessary, it was tailored to be as narrow as possible without
sacrificing prevention of the risk; and (iii) the salutary effects of the ban
outweighed its deleterious effects on the rights and interests of the parties
and the public, including effects on free expression, the right to a fair and
public trial, and efficacy in the administration of justice.16
Justice LeBlanc concluded that AB had not established a serious risk
to the proper administration of justice on the evidence. He rejected ABs
assertions that without the publication ban, those who had downloaded
the file would revisit it, noting that those people already knew her identi-
ty anyway, that the profile was no longer on the Internet, and that AB
had not established a real risk that someone would republish it.17 Justice
12 AB Chambers, supra note 1 at para 2.
13 Ibid at paras 1722.
14 Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522.
15 Osif v College of Physicians and Surgeons (Nova Scotia), 2008 NSCA 113, 271 NSR (2d)
370.
16 AB Chambers, supra note 1 at paras 2527.
17 Ibid at para 31.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 715
LeBlanc further held that the affidavits filed in support of the application
provided no evidence of any danger to the emotional health of AB, nor of
any physical, psychological, emotional or mental effects she may have
suffered in connection with the fake profile.18 Not only did the court find
that embarrassment without additional evidence of harm was insuffi-
cient to displace the need to have open courts, it also suggested that pub-
licity surrounding ABs case would be beneficial to the public:
I believe it is important for people to understand the positive and the
negative aspects of chat rooms, social networking, and other such in-
ternet resources. A total publication ban would mean that the public
would not be aware of how social networking programs work and
how they can be destructive to the public and particularly to young
persons.
I believe that bullying and this type of pernicious conduct should be
exposed and condemned by society. Only if the public know the ex-
tent of such conduct and its likely result, will society speak up for
better control of such conduct arising from free and unlimited ability
to publish such material on internet sites.19
In the absence of an evidentiary basis for specific harm likely to be
suffered by AB if the publicity requests were not granted, or of evidence
as to the harm she had suffered since publication of the fake profile, the
court concluded that ABs publicity-related requests should be dis-
missed.20 Justice LeBlanc advised the parties that any costs submissions
should be made within three weeks.21
In fact, both the Herald and Global applied for costs against either CD
(as ABs litigation guardian) or ABs counsel. The Herald sought $6,250
based on the trial tariff or, in the alternative, $5,000 for cumulative ap-
pearances on the lower tariff, and Global also sought costs of a similar
amount.22 Both media outlets argued that the normal rule that costs fol-
low the result should apply and that they had been successful in defeat-
ing ABs publicity-related requests.23 Global argued that AB should not
have sought an abridgement of time and that the adjournment to allow
AB to file supplementary materials for her publicity-related requests re-
flected her counsels failure to properly prepare the original application
materials. It also argued that both the abridgement and adjournment
added to the inconvenience of counsel, requiring them to make them-
18 Ibid at para 34.
19 Ibid at paras 3233.
20 Ibid at para 37.
21 Ibid at para 38.
22 AB Costs, supra note 2 at paras 56.
23 Ibid at paras 46.
716 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
selves available on short order (even though Global did not appear on the
first day of the hearing).24
Justice LeBlanc acknowledged that he had allowed the abridgement of
time about which the media outlets now complained, but pointed out that
ABs counsel had never adequately explained why materials relating to
the privacy issue had not been included with the original application.25 As
a result, the Court concluded that this was an appropriate case to depart
from the general rule that costs should not be awarded to interveners.26
Agreeing with the media outlets that the higher tariff was appropriate be-
cause the hearing of the matter resembled a trial more than a motion,
Justice LeBlanc ordered costs in favour of the Herald ($1,500) and Global
($750). The court stated it was awarding costs
primarily on account of the need for an adjournment to allow the ap-
plicants to file a supplementary brief, requiring the Herald to file a
supplementary brief in reply. But for this absence of any meaningful
material from the outset there would be no need for an adjournment,
thereby avoiding a further half day of court time to dispose of the
application.27
AB appealed the NSSCs decisions relating to her publicity-related re-
quests and costs to the Nova Scotia Court of Appeal. She was successful in
obtaining orders allowing her to proceed with her appeal using a pseudo-
nym and banning publication of the actual words used in the fake profile,
pending further order of the court.28
B. Decision of the Nova Scotia Court of Appeal
The Nova Scotia Court of Appeal dismissed ABs appeal in March
2011, ordering costs in favour of the Herald ($2,000) and Global ($1,000),
plus disbursements.29 Justice Saunders, writing for the court, opened the
reasons for the courts decision by characterizing the case as one pitting a
teenager who finds herself the victim of on-line bullying against the pub-
lics right to be informed by a free and independent press given unre-
24 Ibid at para 6.
25 Ibid at para 20.
26 Ibid.
27 Ibid at para 21.
28 See AB v Bragg Communications Inc, 2010 NSCA 57 at paras 1, 24.
29 Ibid at para 103. Notably, prior to the hearing of the appeal, the NSCA dismissed the
intervention application of Beyond Borders, a childrens rights organization that was
later granted intervener status before the SCC (see AB v Bragg Communications Inc,
2010 NSCA 70, 294 NSR (2d) 203).
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 717
stricted access to open court proceedings.30 With this characterization of
the interests at stake, one need not have read on to figure out who would
prevail in the contest between a bullied teenager and the public in its
quest to be informed by a free and independent press.
On appeal, Justice Saunders was asked to decide whether Justice Le-
Blanc erred by failing to: (i) exercise his parens patriae jurisdiction so as
to take account of childrens distinct vulnerability; and (ii) find that the
publication of the allegedly defamatory statements was evidence in itself
of a serious risk of harm.31 The NSCA dismissed both of these arguments.
1. Parens patriae
Justice Saunders rejected ABs parens patriae argument for four rea-
sons. First, the court noted that AB had never requested that Justice Le-
Blanc exercise such jurisdiction, leaving the NSCA at a loss to under-
stand how fault can be laid at the feet of the judge of first instance for
failing to initiate a form of relief which had never been raised in argu-
ment.32 Second, Justice Saunders held that parens patriae jurisdiction is
to be exercised cautiously and only to help a party under disability,
whereas she found no indication in the evidence that AB was so marked
by disability that the court was obligated to intervene to protect her.33
Third, the court held that parens patriae jurisdiction should only be used
to fill legislative gaps or in situations requiring judicial review, whereas
the Nova Scotia Civil Procedure Rules provided a full scheme for address-
ing non-publication requests.34 Finally, the court indicated that parens pa-
triae should not be invoked to circumscribe the Rules.35
Moreover, the court was unpersuaded by ABs arguments that the
vulnerability of children had been recognized in legislative spheres such
as in family law and criminal law, noting that those instances of recogni-
tion reflect legislative choices for specific kinds of proceedings, and that
even within these spheres, childrens identities and reputations are not
protected absolutely.36 When balanced against the openness of courts as a
key underpinning of democracy that is inextricably tied to freedom of ex-
pression, the court discounted ABs age as simply a circumstance, among
30 AB Appeal, supra note 3 at para 1.
31 Ibid at para 18.
32 Ibid at para 56.
33 Ibid at paras 5859.
34 Ibid at paras 6061.
35 Ibid at para 62.
36 Ibid at paras 6971.
718 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
many factors, for the judge to take into account.37 Justice Saunders em-
phasized prior authorities that indicated that embarrassment was not
enough to justify restricting the open court principle, and also noted that
openness and accessibility were critical to the kind of claim the court
found AB intended to advancedefamation.38 The court held that pursu-
ing this kind of claim under a cloak of secrecy … [was] contrary to the
quintessential features of defamation law:39
A.B. has chosen to defend her reputation in court. When one makes
that election, one is bound by the rules. Actions are tried by judge
and jury. The case is heard in open court. The pleadings are availa-
ble for public inspection. When injury to reputation is alleged, it is
hardly surprising that personal and potentially embarrassing details
will be disclosed. But that is the reality of pursuing litigation in Ca-
nadian courts, where the open-court principle is enshrined.40
Nor was the court moved by ABs suggestion that the sexualized nature of
the comments on the fake profile in any way rendered her situation paral-
lel to that of a sexual assault complainant, whose identity could be pro-
tected:
With respect, the comparison is misplaced. A.B. is not herself a vic-
tim of sexual assault, seeking civil redress for crimes to which she
was subjected. On the contrary, she is an intended plaintiff in a def-
amation case.41
Finally, the court suggested that the logical conclusion of ABs argu-
ment was that if her alleged defamer was also a child, she or he would al-
so be entitled to anonymity, thereby leading to the absurd prospect of an
anonymous plaintiff, an anonymous defendant, and a ban on publication
of the impugned wordsa result that would be anathema to an action in
defamation.42 In light of this, Justice Saunders found that it would be
contrary to the public interest to allow AB to proceed with her identity
kept secret.43
37 Ibid at para 68.
38 Ibid at paras 7374, 7879.
39 Ibid at para 80.
40 Ibid at para 83.
41 Ibid at para 81.
42 Ibid at para 84.
43 Ibid at para 85.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 719
2. Proof of a Serious Risk of Harm
The Nova Scotia Court of Appeal found that ABs failure to lead evi-
dence of harm or the risk of harm to herself was fatal44 to her publicity-
related requests and dismissed ABs argument that once a prima facie
case of defamation was established, the presumption of damages in defa-
mation law should also satisfy the requirement of proving a serious risk of
harm in order to obtain a publication ban.45 Justice Saunders suggested it
would have been relatively easy for AB to file some affidavit evidence to
prove that she had been harmed by the fake profile, which could then
have been used as a basis for predicting further harm in the future.46 In-
stead, the court found that AB had chosen to attempt to displace the rule
of open and public access to courts with what amounted to nothing more
than inconvenience or embarrassment, and that she left to pure specula-
tion any true harm to her that would arise from pursuing her defamation
claim openly.47 In addition, the court found that the public interest in this
case was best served by the public being able to view the profile in its en-
tirety in order to better understand the nature of the alleged defama-
tion.48
Not only did the court reject ABs claims that proceeding without her
requested publicity protections would be harmful to her and could deter
child victims of online bullying from seeking redress, it also imagined that
completely open pursuit of the claim could have quite laudatory effects:
One could just as easily imagine a salutary result in being required
to pursue an action in defamation, by name and in public. Such will
serve the public interest by both alerting social networking players
to the inherent risk of sharing very personal information among
friends, while at the same time deterring would-be bullies with the
threat of retribution once unmasked.49
The court went on to suggest that AB might become something of a folk
hero:
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 def-
amation, and alerted to the consequences of sharing information
44 Ibid at para 94.
45 Ibid at paras 9395.
46 Ibid at para 93.
47 Ibid at para 98.
48 Ibid.
49 Ibid at para 99.
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through social networking among friends on a 21st century bulle-
tin board with a proven global reach.50
The Supreme Court of Canada granted AB leave to appeal this deci-
sion, also granting a publication ban pending resolution of the appeal.51
Prior to the hearing of the appeal, an amicus curiae was appointed to rep-
resent media interests (as neither the Herald nor Global wished to con-
tinue), and ten other organizations were granted intervener status.52
III. Analysis of the Supreme Court Decision
The Supreme Court unanimously allowed ABs appeal in part, holding
that she should be allowed to proceed under a pseudonym, but that there
should be no ban on the publication of non-identifying information about
the case. Justice Abella, writing for the Court, held that the issue was
whether the confidentiality order and the partial publication ban were
necessary to protect an important legal interest, while impairing free ex-
pression and the open court principle as little as possible. She found that
if alternative measures could just as effectively protect the interests en-
gaged, the restriction would not be justified. If no alternative measures
existed, then the Court would have to consider whether a proper balance
had been struck between the open court principle and ABs privacy.53 Jus-
tice Abella held that although the open court principle was important,
sometimes the protection of other social values must prevail over open-
ness.54
A. The Harm to ABs Privacy
Justice Abella found that ABs privacy interest was tied to her age and
to protection from the relentlessly intrusive humiliation of sexualized
online bullying.55 While evidence of harm to that interest was a relevant
50 Ibid at para 102.
51 Ibid, leave to appeal to SCC granted, 350 DLR (4th) 519; publication ban ordered (25
May 2011).
52 The ten groups granted intervener status were the British Columbia Civil Liberties As-
sociation, Beyond Borders, BullyingCanada Inc, the Canadian UNICEF Committee, the
Canadian Civil Liberties Association, the Samuelson-Glushko Canadian Internet and
Public Policy Interest Clinic, Kids Help Phone, the Media Coalition, the Office of the In-
formation and Privacy Commissioner of Ontario, and the Office of the Privacy Commis-
sioner of Canada.
53 AB SCC, supra note 4 at para 11.
54 Ibid at para 13, citing Attorney General Nova Scotia v MacIntyre, [1982] 1 SCR 175 at
18687, 132 DLR (3d) 385, Dickson J (as he then was).
55 AB SCC, supra note 4 at para 14.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 721
consideration, the Court found that objectively discernable harm was
identifiable through the application of reason and logic.56 Given that
recognition of the inherent vulnerability of children and concomitant na-
tional and international protections are deeply embedded in the law, the
Court held that the primary concern was one of age and not of an individ-
ual childs specific temperament: [I]n an application involving sexualized
cyberbullying, there is no need for a particular child to demonstrate that
she personally conforms to this legal paradigm. The law attributes the
heightened vulnerability based on chronology, not temperament.57
Justice Abella held that the privacy of young persons was well recog-
nized in the law not only as an aspect of their section 7 and 8 Charter
rights,58 but also due to their presumed diminished moral culpability.59
She cited as an example the protection of child complainants through ad-
mission of their testimony by videotape, which reduces the stress and
trauma they may suffer as participants in the justice system.60
The Court found that it was logical to infer that children may suffer
harm through cyberbullying, relying primarily on the findings from Pro-
fessor Wayne MacKays 2012 report for the Nova Scotia Task Force on
Bullying and Cyberbullying.61 Justice Abella referred to the MacKay Re-
ports findings that bullying may have many harmful effects, including
loss of self-esteem, anxiety, fear, and a greater risk of suicide for those
who are bullied. Justice Abella also highlighted the reports finding that
cyberbullying may have even worse effects because it can be spread wide-
ly, quicklyand anonymously.62 In addition to the evidence of psycholog-
ical harm, the Court noted the further harms that flow from children de-
clining to take steps to protect themselves, referring to the MacKay Re-
ports statistic that half of all bullying goes unreported, often out of fear
that solutions will not be found or that bullies will retaliate. Drawing on
MacKays recommendation that there be anonymous ways of reporting
56 Ibid at paras 1516, citing RJR-MacDonald Inc v Canada (AG), [1995] 3 SCR 199 at
para 72, 127 DLR (4th) 1.
57 AB SCC, supra note 4 at para 17.
58 See Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]
59 AB SCC, supra note 4 at para 18, citing Toronto Star Newspaper Ltd v Ontario, 2012
ONCJ 27 at paras 4041, 255 CRR (2d) 207, Cohen J.
60 AB SCC, supra note 4 at para 19, citing R v L (DO), [1993] 4 SCR 419 at 44546, 161
NR 1.
61 AB SCC, supra note 4 at para 20, citing a Wayne MacKay CM, QC, Chair, Respectful
and Responsible Relationships: Theres No App for That (Nova Scotia, The Report of the
Nova Scotia Task Force on Bullying and Cyberbullying, 2012) [MacKay Report].
62 AB SCC, supra note 4 at paras 2223.
722 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
cyberbullying as well as the prior Supreme Court finding that privacy for
sexual assault victims encourages reporting, Justice Abella found that
[i]t does not take much of an analytical leap to conclude that the likeli-
hood of a child protecting himself or herself from bullying will be greatly
enhanced if the protection can be sought anonymously.63
The Court also found support for this conclusion in evidence filed by
the Kids Help Phone. Included within that evidence were indications that
anonymity could be used to encourage children to obtain assistance and
seek therapy and other remedies, as well as references to studies showing
that allowing publication of identifying information about child victims
could complicate recovery, discourage future disclosures, and inhibit co-
operation with authorities.64 The Court concluded:
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.65
B. The Open Court Principle
Justice Abella noted that the Supreme Court had previously found
that use of pseudonyms only minimally harms the open court principle:66
the public and the media can still attend the hearing, and media can re-
port the facts and conduct of the trial, so long as they do so without releas-
ing identifying information about the person protected by the pseudonym.
The Court found that if the identity of a sexual assault victim is relatively
unimportant to the open court principle, then the identity of a victim of
sexualized cyberbullying is also relatively unimportant.67
The Court concluded, however, that once AB was protected from hav-
ing her identity disclosed, there was no further justification for a partial
publication ban relating to the fake profile. As a result, her confidentiality
63 Ibid at paras 2425.
64 Ibid at para 26.
65 Ibid at para 27.
66 Ibid at para 28.
67 Ibid at paras 2829, citing Canadian Newspapers Co v Canada (AG), [1988] 2 SCR 122,
52 DLR (4th) 690.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 723
request was granted, but the Court held that the media should be allowed
to report non-identifying information relating to the case.68
IV. Locating Sexualized Online Bullying in Structural Inequality
It seems clear from the reasons for its decision that the Supreme
Court was concerned with protecting young victims of sexualized cyberbul-
lying from having their identities disclosed in litigation against their at-
tackers, since disclosure might well discourage victims from seeking legal
remedies for this behaviour. And, although Justice Abella referred to a
considerable amount of social science evidence concerning the harms of
bullying generally and cyberbullying more specifically,69 nowhere did the
Court advert to other findings in those same reports that demonstrate
who is disparately likely to be victimized by bullying and cyberbullying.
Nor did the Court reflect substantively on the foundation of structural in-
equality that undergirds sexualized attacks and which may partially ex-
plain why the targets of these attacks may see privacy as being so im-
portant. No one, however, could reasonably hold the Supreme Court pri-
marily accountable for the absence of the e word from its judgment. A
search of the twelve written submissions filed with the Court reveals that
none mentioned the word equality.
My purpose here is not to undermine the potential importance of AB
for future victims of online sexualized bullying who may wish to pursue
civil legal redress. Having a clear ruling that they need not file evidence of
the impact of the harassment on their own emotional, mental, and physi-
cal well-being in order to seek disclosure of subscriber information pseu-
donymously cannot be lightly dismissed. The ruling not only recognizes
the humiliating nature of sexualized online attacks, but it could also re-
duce the cost and delay associated with amassing and filing evidence of
such attacks impact. As a result, ABs admirable perseverance in pressing
the case all the way to the Supreme Court should ease the burden of fu-
ture targets of sexualized cyberbullying who may have been dissuaded
from seeking legal redress due to privacy-related fears. The ruling may
also enhance substantive equality to the extent that sexualized online at-
tacks are likely to disproportionately target members of certain vulnera-
ble groups of young people, including girls and members or perceived
members of LGBTQ communities. Nonetheless, my objective here is two-
68 AB SCC, supra note 4 at para 31.
69 See Christine Dinsmore, ed, Child Safety Online: Global Challenges and Strategies
(Florence: UNICEF Innocenti Research Centre, 2011) at 3, online: UNICEF
61 at 16.
724 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
fold: (i) to explore Charter-based equality analyses that might have been
advanced in this case, or that could be advanced in future cases of sexual-
ized cyberbullying in lieu of or in tandem with the privacy and protection
analyses that were raised in AB; and (ii) to suggest some of the ways in
which equality analyses could have meaningfully contributed to a better-
contextualized understanding of sexualized online bullying and proposed
approaches for proactively addressing it.
A. Equality Analyses that Could Have Been Advanced
Given that the litigation at issue involved two private parties, AB
could not have argued that her Charter equality rights had been violated
directly. However, equality might have been raised in much the same way
as privacy wasas a guiding constitutional and international law70 prin-
ciple for the development and interpretation of the common law relating
to the open court principle.71 Section 15 of the Charter provides that
[e]very individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination
based on, among others, the explicitly articulated grounds of sex and age72
and the analogous ground of sexual orientation.73 Section 28 confirms that
the rights and freedoms referred to in the Charter are guaranteed equal-
ly to male and female persons.74 In the context of young victims of sexual-
ized online bullying, equality interests may be triggered in several ways,
including in relation to age, sex, and sexual orientation (and these are on-
ly three examples of identity-based forms of online attack, given the cen-
tral and intersecting roles that other axes of discrimination, such as race,
Aboriginal ancestry, and ability can play in undergirding cyberbullying in
general and sexualized cyberbullying in particular).
70 See especially International Covenant on Civil and Political Rights, 19 December 1966,
999 UNTS 171, arts 3, 26, Can TS 1976 No 47, 6 ILM 368 (entered into force 23 March
1976, accession by Canada 19 May 1976); Convention on the Elimination of All Forms of
Discrimination Against Women, 18 December 1979, 1249 UNTS 13, Can TS 1982 No
31, 19 ILM 33 (entered into force 3 September 1981, accession by Canada 9 January
1982).
71 See Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at para 83, 126 DLR
(4th) 129.
72 See Charter, supra note 58, s 15.
73 See Egan v Canada, [1995] 2 SCR 513 at 518, 124 DLR (4th) 609 [Egan].
74 Charter, supra note 58, s 28.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 725
1. Age
Children and youth are entitled to equality before and under the law
and to equal protection of the law without discrimination on the basis of
(among other things) their age.75 The Supreme Court has clearly indicated
that, in some cases, ensuring childrens equality may mean treating them
differently from adults.76 Here, counsel could have argued that ABs right
to equality as a young person required granting her access to pseudonym-
ity in order to permit her to pursue civil legal redress against her attack-
er, and that the application of the subjective proof of harm standard,
which might otherwise be fairly applied to adults, had discriminatorily
negative effects when applied to a child. In fact, the Supreme Court ac-
cepted a considerable body of evidence that indicated, among other things,
that children were more likely to seek assistance with problems such as
cyberbullying if they could do so anonymously, and that protection of chil-
drens identities in certain kinds of cases was necessary to facilitate rem-
edies for violations against children.77 This evidence assisted the Court in
determining that the standard of proof for obtaining a pseudonymity or-
der had to be interpreted in a way that better balanced protection of ABs
privacy interests with the open court principle. It might similarly have
been argued that the Courts approach to pseudonymity was necessary in
order to ensure the rights of young people to equal benefit and protection
of the law by minimizing the deterrent effects of publicity that dispropor-
tionately discourage young people from seeking legal and other forms of
redress and assistance.
In addition to ABs age, the other component that Justice Abella
deemed essential to ABs claim for enhanced access to pseudonymity was
the sexualized nature of the attacks.78 Although I have not seen the words
used in the fake Facebook profile of AB,79 certain information about the
nature of the attacks was adverted to in the judgments at all levels of
court, as well as in ABs factum for the Supreme Court. The Nova Scotia
Supreme Court stated that the profile discussed the applicants physical
appearance, weight, and allegedly included scandalous sexual commen-
75 See Canadian Foundation for Children, Youth and the Law v Canada (AG), 2004 SCC
4, [2004] 1 SCR 76.
76 Ibid at para 51.
77 AB SCC, supra note 4 at para 25.
78 Ibid at para 14.
79 Interestingly, despite media representatives pressing the matter all the way to the Su-
preme Court of Canada and winning in relation to the publication ban, I have found no
indication that the media ever published the words that were alleged to be so important
to the open court principle.
726 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tary of a private and intimate nature,80 and the Nova Scotia Court of Ap-
peal largely repeated this description.81 The Supreme Court characterized
the attacks as sexualized, noting that unflattering commentary about
the girls appearance along with sexually explicit references were made.82
In her factum for the Supreme Court, AB indicated that the profile con-
tained references to her allegedly preferred sexual acts.83 In the absence
of the availability of the exact words used, I will draw on literature and
studies relating to online harassment and cyberbullying (including other
portions of the MacKay Report and UNICEF Report that were not re-
ferred to by the Supreme Court) to illustrate two sorts of discriminatory
sexualized attacks that could arguably arise in future cases involving
young victims seeking civil redress in relation to sexualized online bully-
ingthat is, sex-based and homophobic attacks (one or both of which may
have been at issue in AB).84
2. Sex
Children and youth, like adults, are entitled to equality before and
under the law and to equal protection of the law without discrimination
on the basis of sex. In recognition of statistics indicating that females
comprise the overwhelming majority of those who are sexually assault-
ed,85 the Supreme Court has accepted on more than one occasion that pri-
vacy protections for sexual assault complainants are grounded in sex
equality.86 For example, in Darrach the Supreme Court acknowledged
that restrictions on the admissibility of evidence about complainants pri-
or sexual conduct in criminal proceedings could be understood as
measures for ensuring that sexist beliefs about women are not permitted
to distort the trial process and for encouraging women to report crimes of
80 AB Chambers, supra note 1 at para 3.
81 AB Appeal at para 7.
82 AB SCC, supra note 4 at para 1.
83 AB Factum, supra note 10 at para 98.
84 See e.g. Danielle Keats Citron, Cyber Civil Rights (2009) 89:1 BUL Rev 61 [Keats Cit-
ron, Cyber Civil Rights]; Mary Anne Franks, Unwilling Avatars: Idealism and Dis-
crimination in Cyberspace (2011) 20:2 Colum J Gender & L 224.
85 Canada, Statistics Canada, Criminal Victimization in Canada, 2009, vol 30 (Juristat,
2010) at 11, online:
86 However, the SCCs record of guarding these equality interests in the context of chal-
lenges to Criminal Code provisions has been less than stellar. See Margaret Denike,
Sexual Violence and Fundamental Justice: On the Failure of Equality Reforms to
Criminal Proceedings (2000) 20:3 Canadian Woman Studies/les cahiers de la femme
(Women 2000: Eradicating Poverty and Violence in the 21st Century) 151. See also R v
Seaboyer, [1991] 2 SCR 577, 83 DLR (4th) 193 [Seaboyer]; R v OConnor, [1995] 4 SCR
411, 130 DLR (4th) 235.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 727
sexual violence.87 Similarly, the Supreme Court has recognized that com-
plainants privacy interests with respect to production of counselling rec-
ords are also tied to the equality rights of women, children, and the disa-
bled.88 As Justice McLachlin (as she then was) wrote in Ryan:
A rule of privilege which fails to protect confidential doctor/patient
communications in the context of an action arising out of sexual as-
sault perpetuates the disadvantage felt by victims of sexual assault,
often women. The intimate nature of sexual assault heightens the
privacy concerns of the victim and may increase, if automatic disclo-
sure is the rule, the difficulty of obtaining redress for the wrong. The
victim of a sexual assault is thus placed in a disadvantaged position
as compared with the victim of a different wrong. The result may be
that the victim of sexual assault does not obtain the equal benefit of
the law to which s. 15 of the Charter entitles her. She is doubly vic-
timized, initially by the sexual assault and later by the price she
must pay to claim redressredress which in some cases may be part
of her program of therapy.89
In AB, counsel might have argued that ABs right to sex equality required
enhanced access to pseudonymity in order for her to pursue civil redress
against her attacker. At least one of the reports cited in the SCCs reasons
provides support for concluding that females (as well as other vulnerable
community members) are disproportionately subject to bullying. The
MacKay Report, for example, states: Bullying often results from, and re-
inforces, discrimination. Marginalized groups may be targeted for issues
of racism, sexism, able-ism, xenophobia, and homophobia, among other
identities, and are generally considered to be at a higher risk for bully-
ing.90
There appear to be some discrepancies in social science findings about
whether females are more likely than males to be either the purveyors or
the targets of cyberbullying or online harassment.91 However, mounting
87 R v Darrach, 2000 SCC 46, [2000] 2 SCR 443 at paras 34, 68.
88 See R v Mills, [1999] 3 SCR 668 at 72728, 180 DLR (4th) 1.However, as noted by Lise
Gotell, bare recognition of this connection does not appear to have resulted in affirma-
tive substantive equality analyses or results (Lise Gotell, When Privacy is Not Enough:
Sexual Assault Complainants, Sexual History, Evidence and the Disclosure of Personal
Records (2006) 43:3 Alta L Rev 743).
89 M (A) v Ryan, [1997] 1 SCR 157 at para 30, 143 DLR (4th) 1 [Ryan].
90 MacKay Report, supra note 61 at 16; see also Senate, Standing Committee on Human
Rights, Evidence, 41st Parl, 1st Sess, Issue 11 (30 April 2012) (Chair: SB Jaffer) (Faye
Mishna), online:
91 Witnesses before the Senate Human Rights Committee hearing on cyberbullying ex-
pressed conflicting positions with respect to the involvement of boys and girls in bully-
ing and cyberbullying Senate, Standing Committee on Human Rights, Cyberbullying
728 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
social science evidence and published legal research suggest that girls are
more likely than boys to be targeted by sexualized online bullying in the
form of threats of sexual violence92 and in relation to being (or allegedly
being) sexually active or sexually promiscuous.93 Further, studies suggest
that girls understand the severity and long-term risks of being labelled
sexually active or promiscuous and having that reputation follow them for
the rest of their lives in ways seemingly inapplicable to boys engaged in
heterosexual activity.94
Attacks based on actual or alleged sexual activity or promiscuity,
much like the MadonnaWhore Complex referred to by Justice
LHeureux-Dub in her dissenting reasons in Seaboyer,95 are referred to
as slut-shaming in the girlhood studies literature.96 Appeals to these
discriminatory myths are a well-known tool for discrediting girls and
young women on the basis of their participation in actual or alleged sexu-
Hurts: Respect for Rights in the Digital Age (December 2012) at 35 (Chair: SB Jaffer),
online: Parliament of Canada
than girls to be involved in online bullying, Wendy Craig testified that girls were more
likely than boys to be both victims and perpetrators of cyberbullying, but that boys were
catching up to girls in rates of cyberbullying. Offering a distinction, Faye Mishna testi-
fied that more girls said they had been both victims and perpetrators, while boys were
more likely to have reported being perpetrators only. Finally, Tina Daniels suggested
that gender differences were minimal with respect to cyberbullying (ibid). Further,
while men and women were equally likely to report having been cyberbullied on the
2009 General Social Survey, responses to the same survey indicated that in approxi-
mately 70% of reported instances of cyberbullying of children, the targets were girls.
See Samuel Perreault, Self-reported Internet victimization in Canada, 2009 Juristat
(15 September 2011) at 5, online: Statistics Canada
92 See Keats Citron, Cyber Civil Rights, supra note 84; Franks, supra note 84; Shaheen
Shariff, Cyber-Bullying: Issues and Solutions for the School, the Classroom and the
Home (Abingdon: Routledge, 2008) at 40. See also Mishna evidence, supra note 90; Dan-
ielle Keats Citron, Laws Expressive Value in Combating Cyber Gender Harassment
(2009) 108:3 Mich L Rev 373.
93 See ibid. See also Jessica Ringrose & Emma Renold, Normative Cruelties and Gender
Deviants: The Performative Effects of Bully Discourses for Girls and Boys in School
(2010) 36:4 British Educational Research Journal 573; Jane Bailey et al, Negotiating
with Gender Stereotypes on Social Networking Sites: From Bicycle Face to Facebook
(2013) 37:2 Journal of Communication Inquiry 91.
94 See Valerie Steeves, Young Canadians in a Wired World, Phase III: Talking to Youth
and Parents About Life Online (29 May 2012) at 34, online: MediaSmarts
95 Seaboyer, supra note 86 at 652, LHeureux-Dub J, dissenting, citing Lynda Lytle
Holmstrom & Ann Wolbert Burgess, The Victim of Rape: Institutional Reactions (New
Brunswick, NJ: Transaction Publishers, 1983) at 17499.
96 See e.g. Jessica Ringrose, Postfeminist Education?: Girls and the Sexual Politics of
Schooling (New York: Routledge, 2012) at 93.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 729
al activity97 (or even in contexts in which they were or were alleged to
have been sexually assaulted).98 Viewed from this perspective, counsel
might have argued that the Supreme Courts approach to pseudonymity
orders, although framed as a privacy issue, was more fundamentally con-
nected to ensuring girls and young womens rights to sex equality, be-
cause these kinds of sexualized attacks and their subsequent repetition
are disparately likely to negatively affect females.
3. Sexual Orientation
LGBTQ children and youth, like adults, are entitled to equality before
and under the law and to equal protection and benefit of the law without
discrimination on the basis of sexual orientation. The Supreme Court in
Egan held that sexual orientation is a deeply personal characteristic that
is either unchangeable or changeable only at unacceptable personal
costs99 and therefore constitutes an analogous ground of prohibited dis-
crimination under section 15 of the Charter. Although there is no direct
indication that the attack on AB was homophobic, the description in her
factum to the Supreme Court of the part of the fake profile that referred
to her allegedly preferred sexual acts100 invites consideration of the pos-
sibility that young victims of sexualized online bullying may seek redress
for online harassment based on descriptions or allegations of participation
in same-sex sexual activities. In these kinds of cases, counsel could argue
that a bullying targets right to equality as a member or perceived mem-
ber of the LGBTQ community requires enhanced access to pseudonymity
in order to permit the target to pursue civil legal redress against the
online attackerthat is, that the application of a subjective proof of harm
standard is inconsistent with a targets right to be free from discrimina-
tion on the basis of sexual orientation.
Homophobic and transphobic attacks, used to police gender conformity
and maintain gender hierarchy by insisting that boys properly perform
masculinity by being sexually interested only in girls and that girls
properly perform femininity either by being asexual or by being sexually
97 See Ringrose & Renold, supra note 93; Bailey et al, supra note 93.
98 For example, in the Rehtaeh Parsons case, a young woman committed suicide after
having alleged she was sexually assaulted and subjected to circulation of the images of
the assault online. See Rape, bullying led to NS teens death, says mom CBC News (9
April 2013), online: CBC News
99 Egan, supra note 73 at 528.
100 AB Factum, supra note 8 at para 98.
730 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
interested only in boys, are all too familiar offline.101 More recently, a
growing body of evidence demonstrates that such attacks are proliferating
online. Included within that body of literature are two of the reports cited
by the Supreme Court in its reasons in AB: the MacKay Report referred to
above, and the 2011 UNICEF report on child online safety, which states:
Research from Canada and the United Kingdom identifies children
who are at risk of being bullied offline (for example, children who
may be perceived as different, such as minority ethnic groups, les-
bian, gay, bisexual or transgender (LGBT) young people, overweight
children, or those with perceived disabilities) to be at greater risk of
being bullied online than other children.102
In hearings held by the Senate Human Rights Committee in its exam-
ination of cyberbullying, Professor Elizabeth Meyer testified: The issues
of sexual orientation, whether you are perceived to be gay, lesbian or bi-
sexual, issues of gender expression, whether you are seen to be as mascu-
line as other boys or as feminine as other girls, those are highly involved
reasons that students are targeted.103
Further, an Egale study released in 2011 showed that 30.7 per cent of
female sexual minority students, 23.2 per cent of gay boys, and 40.7 per
cent of transgendered students said they had been victims of online har-
assment, compared to only 5.7 per cent of the heterosexual population re-
sponding to the survey.104 These results indicate that LGBTQ children
and youth may well be at increased risk of sexualized online bullying in
the form of attacks focused on actual or alleged engagement in same-sex
sexual relationships. Viewed from this perspective, the Supreme Courts
approach to the standard of proof for obtaining a pseudonymity order
could be understood as necessary to secure LGBTQ children and youths
right to equality on the basis of sexual orientation, since homophobic sex-
ualized attacks are disparately likely to affect actual or perceived mem-
bers of those communities.
101 See e.g. North Vancouver School District No 44 v Jubran, 2005 BCCA 201, 253 DLR
(4th) 294; Donn Short, Dont Be So Gay! Queers, Bullying, and Making Schools Safe
(Vancouver: UBC Press, 2013) at 12, 4142.
102 Dinsmore, supra note 69.
103 Senate Report, supra note 91 at 28.
104 See evidence presented by Helen Kennedy, executive director of Egale Canada, before
the Senate Standing Committee on Human Rights (Senate, Fifth meeting on: Issue of
cyberbullying in Canada with regard to Canadas international human rights obliga-
tions under Article 19 of the United Nations Convention on the Rights of the Child, 41st
Parl, 1st Sess, No 14 (4 June 2012) at 3742). Further support for this proposition is
found in the evidence of experts Elizabeth Meyer and Faye Mishna (ibid at 2829).
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 731
It seems that equality based on age, sex, and sexual orientation could
conceivably have been raised as a reason for better ensuring the availabil-
ity of pseudonymity orders for young victims of sexualized online bullying
seeking legal redress in the courts. That being the case, it is difficult to
avoid speculation about why equality was not even mentioned.
B. Why Wasnt Equality Raised?
Perhaps none of the parties in AB advanced an equality argument be-
cause a privacy argument seemed so readily available and consistent with
the existing case law. Further, given the untidy state of the law with re-
spect to equality for children,105 perhaps the parties and their counsel felt
that privacy and child protection were better suited to achieving a positive
result for AB than was equality. Alternatively, even if the parties were
aware of social science evidence that could assist in grounding a sex-based
equality claim, perhaps there was some concern about the seemingly in-
conclusive nature of the findings about whether girls or boys are more
likely to be cyberbullied and to cyberbully106inconclusiveness that might
suggest a level of parity between males and females.
I do not suggest here that any of these reasons are baseless; nor is
what follows intended to undermine the important precedent that AB
achieved not just for herself, but also for youthful targets of online sexual-
ized bullying who may in the future wish to seek civil legal redress. How-
ever, I want to suggest that analyzing sexualized online bullying explicitly
through an equality lens could have made a meaningful difference.
C. What Difference Could an Equality Analysis Have Made?
Enhanced access to pseudonymity grounded in privacy alone risks de-
politicization and individuation of the interests at stake, especially insofar
as privacy has tended to be characterized as an individuals right to be
left alone.107 By characterizing ABs privacy interests as being tied to both
her age and the nature of the victimization she seeks protection from,
the Supreme Court readily recognized the relentlessly intrusive humilia-
tion of sexualized online bullying.108 However, the risk of the Courts re-
105 See Katie Sykes, Bambi Meets Godzilla: Childrens and Parents Rights in Canadian
Foundation for Children, Youth and the Law v. Canada (2006) 51:1 McGill LJ 131.
106 See Senate Report, supra note 91 at 35.
107 For these reasons, prominent feminists, such as Catharine MacKinnon and Martha
Nussbaum, have argued that womens lived equality is unlikely to be improved through
privacy-based approaches. See Jane Bailey, Towards An Equality-Enhancing Concep-
tion of Privacy (2008) 31:2 Dal LJ 267 at 280, 287.
108 AB SCC, supra note 4 at para 14.
732 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
sponding to this fact with privacy alone is that it obscures the underlying
inequalities that make refuge to privacy necessary.109 Privacy with respect
to sexual intimacy might be understood as affirmatively grounded in dig-
nity rather than negatively grounded in avoidance of shame. However, in
ABs case, since the sexualized content on the Facebook profile was al-
leged to be false, it is more difficult to understand privacy in relation to
that content as being grounded in controlling information relating to ABs
intimate life.
Moreover, if the real issue at stake in cases like ABs is solely that sex
is private and intimate and ought not to be publicized (or re-publicized)
without consent, why is it that publicization is understood to be so much
more shameful and humiliating for girls and LGTBQ youth than it is for
heterosexual boys? Understanding access to pseudonymity as an interim
response to conditions of inequality brings us closer to an answer by con-
textualizing an individual targets claims within a broader, collective
framework. Pseudonymity for those seeking legal redress for online sexu-
alized bullying may represent a situation in which privacy protections
serve as an interim survival tool for members of vulnerable groups living
in a state of structural inequality.110
To the extent that girls and members of the LGBTQ community are
disproportionately likely to be subjected to sexualized online bullying, a
privacy-enhancing measure arguably advances the collective privacy in-
terests of members of these groups. Further, an equality analysis allows
us to frame the targeting of girls and members of the LGBTQ community
for shaming through sexualized attacks within the broader framework of
prejudices such as misogyny and homophobia, which are often cross-cut
with racism, classism, and colonialism.111 A key reason that members of
these groups may be more likely to need to resort to privacy-enhanced ac-
cess to civil redress in relation to sexualized attacks is for protection
against the social shame and humiliation that flows from failing (or being
109 See Gotell, supra note 88.
110 Ruth Gavison has suggested that concealment may well be an important function of
privacy for members of equality-seeking communities for whom exposure may result in
severe physical, psychological, and emotional injury (Privacy and the Limits of Law
(1980) 89:3 Yale LJ 421 at 45253). While privacy may be an essential tool for protec-
tion of members of equality-seeking groups in some cases, framing this as a matter of
privacy alone risks perpetuation of the very inequality that can sometimes operate to
coerce a choice to conceal a fundamental aspect of ones personhood in the first place.
Bailey, supra note 107 at 292, n 69.
111 See Ringrose & Renold, supra note 93; Sherene H Razack, Gendered Racial Violence
and Spatialized Justice: The Murder of Pamela George (2000) 15:2 CJLS 91; Kimberle
Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence
Against Women of Colour (1991) 43:6 Stan L Rev 1241.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 733
alleged to have failed) to conform to rigid gender standards. The discrimi-
natory tropes that are used to police gender conformity include the idea
that girls are supposed to make themselves sexy for boys, yet simulta-
neously behave in a feminine and asexual manner.112 Axes of discrimi-
nation also interlock for girls from racialized and Aboriginal communities,
who are frequently depicted as being incapable of appropriate feminine
modesty (and thus unworthy of privacy protections at all).113 In contrast,
boys are supposed to be appropriately masculine, which includes being
sexually interested in and active only with girls.114 Online sexualized bul-
lying will often trade on such misogynistic and homophobic tropes in or-
der to police gender conformity and prop up gender hierarchy by publiciz-
ing factual or fictitious breaches of expected performances of femininity
and masculinity.115 Viewed through an equality lens, enhanced capacity
for targets of sexualized online bullying to sue pseudonymously is not
necessarily about privacy per se, but about ensuring that the law mini-
mizes further abuse of publicity that is disproportionately likely to pre-
vent girls and LGBTQ youth from seeking civil redress for this kind of at-
tack in the first place.
To characterize enhanced access to pseudonymity as being about pri-
vacy alone both obscures and risks collusion with the discriminatory
myths upon which sexualized online bullying is likely to trade, as well as
the systemic inequality that these myths and bullying practices serve to
perpetuate.116 Whether true or false, the allegations in sexualized online
bullying work to shame and intimidate targets because these allegations
often depend on familiar discriminatory myths that undergird inequality,
including that respectable white females are not sexually active,117 that
racialized and Aboriginal females are sexually inviolable, 118 and that
112 See Jessica Valenti, The Purity Myth: How Americas Obsession with Virginity is Hurt-
ing Young Women (Berkeley : Seal Press, 2009).
113 See Gotell, supra note 88 at 749; Anita L Allen & Erin Mack, How Privacy Got Its
Gender (1990) 10:3 N Ill UL Rev 441 at 449.
114 See Elizabeth J Meyer, Gender, Bullying, and Harassment: Strategies to End Sexism
and Homophobia in Schools (New York: Teachers College Press, 2009) at 69, 2122.
115 Ibid.
116 Similar concerns were raised with respect to workplace bullying in Debra L Parkes,
Targeting Workplace Harassment in Quebec: On Exporting a New Legislative Agenda
(2004) 8:2 Employee Rts & Employment Poly J 423.
117 See Gotell, supra note 88; Crenshaw, supra note 111 at 1251, 1295.
118 See Gotell, supra note 88 at 749; Jane Doe, Whats In a Name?: Who Benefits from the
Publication Ban in Sexual Assault Rrials? in Ian Kerr, Valerie Steeves & Carole Lu-
cock, eds, Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Net-
worked Society (New York: Oxford University Press, 2009) 265 at 272.
734 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
same-sex sex is shameful and embarrassing.119 Viewing enhanced oppor-
tunity to proceed pseudonymously as a privacy matter alone risks rein-
scribing the depoliticizing and decontextualized message that sex, sexual-
ity, and even sexual violation are necessarily private matters to be kept
out of public discourse.120 In contrast, under an equality analysis, privacy
becomes an interim measure for responding to the equality-undermining
effects of sexualized online bullying by: (i) better supporting the dignity
interests and choices121 of girls and members of the LGTBQ community
disproportionately likely to be targeted; and (ii) refusing to allow engage-
ment with the legal process itself to automatically precipitate targets con-
tinuing public exposure to the discriminatory practice and underlying
tropes of online sexualized bullying. In this context, one might even argue
that privacy is something of a stopgap measure until something better,
like lived equality, comes along.
Reframing access to pseudonymity in AB as an interim equality
measure goes beyond the interests of individual youthful targets of sexu-
alized online bullying. Recognizing that discriminatory tropes underlie
much sexualized online bullying could contribute to ongoing dialogue
around cyberbullying more broadly, because it invites an examination of
the degree to which systemic group-based discrimination and prejudice
undergird actions carried out by individuals online. Developing a better
understanding of what differentiates unkind remarks by one individual to
another from discriminatory practices grounded in group-based prejudice
ought to put us in a better position to construct more targeted, meaning-
ful policy responses, even as we may accept that both kinds of attacks can
be extremely damaging.
Conclusion
Cyberbullying and bullying in general are increasingly being recog-
nized as social phenomena with potentially lasting and occasionally dev-
astating consequences that demand some form of redress.122 Responses to
119 See Short, supra note 101; Meyer, supra note 114 at 56.
120 See Gotell, supra note 88.
121 Here, we need to be conscious of Jane Does insightful commentary with respect to
state-determined anonymity for sexual assault complainants. She states that [t]he
presumption that she who has had something done to her or against her is the one who
must guard against the ruination of her reputation (versus the perpetrator) is indica-
tive of how turned-around we are on the subject of sexual assault (Doe, supra note 118
at 281).
122 See e.g. Father of Rehtaeh Parsons pleads for new online harassment law Global
News (23 April 2013), online: Global News
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 735
these problems have been many and varied, including the appointment of
task forces123 and the conduct of public hearings.124 From an educational
perspective, laws have been passed intending to make schools safer and
more accepting places and to explicitly extend disciplinary power over
cyberbullying to school authorities.125 While some school boards have fo-
cused on zero tolerance policies primarily aimed at punishing individual
students for bullying behaviours, others have focused more on equality-
based approaches aimed at nurturing environments that cultivate respect
for diversity.126 Some experts focus on the psychological and behavioural
aspects of bullying and have called for educational efforts to train children
to be more empathetic,127 while others have called for bullying bystanders
to become more engaged in defending bullying targets.128
From the legal perspective, discussion of using existing criminal of-
fences or creating new ones129 to prosecute bullies and cyberbullies has in-
tensified.130 Measures facilitating identification of cyberbullies and creat-
ing a civil tort of cyberbullying have recently been adopted in Nova Sco-
Parsons, justice ministers urge Ottawa to tackle cyberbullying The Globe and Mail (19
April 2013), online: The Globe and Mail
crackdown The Globe and Mail (25 April 2013) online: The Globe and Mail
123 See MacKay Report, supra note 61.
124 See Senate Report, supra note 91.
125 See Accepting Schools Act, SO 2012, c 5; see also Safe Schools Act, 2000, SO 2000, c 12.
126 See Short, supra note 101 at 3035.
127 See e.g. Debra Pepler & Wendy Craig, Binoculars On Bullying: A New Solution to Pro-
tect and Connect Children VOICES Reports (February 2007), online: Voices for Chil-
dren
128 See Christina Salmivalli, Antti Karna & Elisa Poskiparta Counteracting Bullying in
Finland: The KiVa Program and Its Effects on Different Forms of Being Bullied (2011)
35:5 International Journal of Behavioral Development 405 at 406. For more infor-
mation on the KiVa program in Finland, see KiVa International, online:
129 One new offence reportedly under consideration relates to the non-consensual distribu-
tion of intimate images of another for a malicious or sexual purpose. See Meagan Fitz-
patrick, Nicholson gets support for June Deadline on cyberbullying CBC News (24
April 2013), online: CBC
130 Michael Tutton, Rehtaeh Parsons mother to discuss new law with PM The Globe and
Mail (21 April 2013), online: The Globe and Mail
736 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tia.131 A handful of bullying targets have brought forward human rights
complaints in an effort to press school boards to take action, especially in
relation to homophobic bullying.132 However, civil litigation by targets
against bullies presents a rather limited opportunity to redress underly-
ing issues and is fraught with problems, including costs, delays, and the
risk of further exposing the target to oftentimes humiliating publicity.
The Supreme Courts decision in AB partially addresses one of the lim-
itations of civil litigation for cyberbullying targets, namely that pursuit of
redress through the court system tends to lead to a risk of further expo-
sure. As a result of the Supreme Courts judgment, young victims of sexu-
alized online bullying will not have to provide evidence of subjective harm
in order to use pseudonyms to obtain court-ordered disclosure of subscrib-
er information from ISPs that may unlock the identity of their otherwise
anonymous or pseudonymous attackers. Further, it would seem logical
that the Supreme Courts finding about the obviously humiliating nature
of online sexualized bullying133 may well extend the reframed standard for
targets to proceed pseudonymously not only with respect to pursuing sub-
scriber information, but also in relation to any subsequent action itself.
From this perspective, AB represents a victory for the protection of chil-
dren and youth and their right to privacy, in that it creates a mechanism
to better ensure targets access to justice through civil legal redress with
respect to sexualized online bullying. However, like the broader discourse
around bullying and cyberbullying more generally, AB leaves the argua-
bly central issue of equality unexplored.
Mounting evidence suggests that sexualized online bullying (like other
forms of sexual violence before it134) is grounded in structural inequality,
which was not put in issue in AB. While arguments about childrens
rights to privacy, protection, and dignity were put forward and considered
by all levels of court, the ways in which sexualized online bullying triggers
equality rights against discrimination on the basis of sex and sexual ori-
entation were never considered. Viewing online sexualized bullying
through an equality lens enables a clearer, more contextualized under-
standing of the collective political patterns at play in what might other-
wise look like purely individual situations of bad or unkind behaviour.
An equality analysis enables us to understand more clearly that sexual-
131 See Cyber-safety Act, SNS 2013, c 2.
132 See Short, supra note 101 at 8.
133 AB SCC, supra note 4 at para 14.
134 See Christine Boyle & Marilyn MacCrimmon, The Constitutionality of Bill C-49: Ana-
lyzing Sexual Assault as if Equality Really Mattered (1998) 41:2 Crim LQ 198; Gotell,
supra note 88; Christine Boyle, Publication of Identifying Information About Sexual
Assault Survivors: R. v. Canadian Newspapers Co. Ltd. (1989) 3:2 CJWL 602.
SEXUALIZED ONLINE BULLYING THROUGH AN EQUALITY LENS 737
ized online bullying reflects social patterns of misogyny and homophobia,
which are complicated by intersecting axes of discrimination, including
racism, classism, and colonialism. Because of these patterns, heterosexual
women and members or perceived members of the LGBTQ community are
disproportionately likely to be targeted and may therefore also be dispro-
portionately likely to need enhanced protections in order to feel safer
when pursuing civil legal redress.
Recognizing the structural inequalities that undergird the power of
sexualized online bullying in the lives of its targets will be essential if we
genuinely aim to craft meaningful reactive and proactive responses to it.
Empathy training may well be a powerful proactive strategy for address-
ing some forms of bullying and cyberbullying, but getting at the roots of
sexualized online bullying seems to demand more targeted anti-
oppression initiatives to address ongoing social and structural inequalities
that continue to render certain groups more vulnerable than others. We
must question why it is that discriminatory tropes, such as the slut-
shaming of females, are so widely understood as a source of social power
and control, and we must move as a community toward defusing that
power, regardless of the identity of the person wielding it.
I, for one, look forward to the day when being female and
dis/interested in sex, refusing to be appropriately feminine or mascu-
line (as the case may be), and being or being perceived to be LGBTQ no
longer constitute potential grounds for shame and reputational ruin
when striving to maintain privacy in relation to them reflects a genuine
exercise of individual choice and dignity, rather than a survival tactic.
Until then, privacy in service of equality may have to do and, without ex-
plicitly referring to equality, the Supreme Courts decision in AB could
represent a first step in that direction.
