A Nova Scotia court has issued the first order under the new Cyber-safety Act. Some critics have claimed the Act as being overly broad and unfair, while the government has defended it as a necessary evolution in the new digital world.
History of the Act
Online bullying has been gaining media attention in recent years with the high profile Canadian cases of Rehtaeh Parsons, Amanda Todd, and many others internationally. Many lawmakers have debated the need for increased legal tools to assist bullying victims, which culminated in Nova Scotia with the passing of the Act. The purpose of the Act is to “provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.” The Act and the associated Cyber-safety Protection Orders Regulations came into force in 2013, and the first order under the new Act was handed down in early February this year.
What Does the Act Do?
The purpose of the Act is to provide timely and tailored court orders to stop cyberbullying. The Act allows a victim or their representative to apply to a “justice” for a protection order. The Justice is given broad discretion to craft an order that will address the bullying, including orders prohibiting the bully from engaging in various conduct, procuring Internet service, or even forfeiture of electronic devices. The purpose of the Act is not to address bullying that has already happened, but to prevent it in the future.
There are many concerns over the new Act, and some believe that at least portions of it may be unconstitutional. These concerns include both the broad reach of the Act, and the process under which it is administered.
To be as effective as possible, the Act defined cyberbullying in a general manner:
“cyberbullying” means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way [emphasis added]
It is unclear from the Act what harm to one’s reputation is sufficient to qualify as cyber bullying, but this could potentially be interpreted to cover harm much broader than that covered by pre-existing defamation laws. Also troubling is that unlike defamation laws, there is no exception for truth. Another interesting portion of the broad definition of cyberbullying is the extension to assisting and encouraging these types of communication. This could extend the scope of cyberbullying to cover even liking or sharing an offending post.
The broad scope of cyberbullying is matched by the broad scope of discretion provided to the judiciary in making protection orders in accordance with the Act. While limited to one year, protection orders may include confiscation of electronic devices used for bullying, and orders restraining the victim from receiving Internet service. It is unclear how these orders will be enforced, but clearly these could have far-reaching impacts for not only the individual found in contravention of the Act, but also for anyone who shares devices or Internet access with him/her.
In addition to the substantive concerns of what the Act covers, there have been a number of questions raised regarding how it operates procedurally. Of particular note is the fact that orders can be made without notifying the allegedly contravening parties, and those parties may only be identified by an IP address or Internet handle within the proceedings. The troubling implication is that a protection order may be made against an individual who not only has no opportunity to respond, but possibly does not even know of the order. This could be seen as a serious slight against the right to be heard – a principle of fundamental justice.
Administrative law approaches to procedural fairness may also provide protections for those named as respondents according to the Act. Relevant to this discussion is the fact that administrative law guarantees procedural fairness whenever a right or interest is engaged by an administrative decision-maker. The level of procedure is tailored based on numerous factors, but can include process far in excess of what is guaranteed by the Act. However, the remedies under administrative law are less severe, and a decision which breaches procedural fairness is most often sent back to the national courts to be decided under a fair process.
The Act does require that any protection order issued by a Justice be approved by the Court, and that any protection order must be served on the other party. However, both of these protections are far less than those afforded by general civil law procedure.
The Canadian Charter of Rights and Freedoms may also have a role to play in determining whether this Act can stand the test of time. Section 7 of the Charter provides everyone with “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” It could be argued that the right to liberty is engaged if the legislative provisions represent the possibility to confiscate electronic devices and limit Internet access. Such an analysis would also have to take a look at whether such an infringement on Charter rights (assuming it qualifies as an infringement) is acceptable in accordance with the reasonable limits set out in Section 1. If the Act is found unconstitutional, the Nova Scotia legislature would likely have to redraft the impugned provisions, similar to the case of Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, where privacy legislation was found to be unconstitutional (see IPilogue coverage on the case here).
Nova Scotia’s new Act may indeed run afoul of either the Charter or principles of fundamental justice such as the right to be heard. However, any attempt to challenge the legislation on these bases would require a respondent affected by the Act to claim the Act‘s invalidity in a court proceeding. As this case is the first of many to be decided using the new powers granted by the legislation, it may be some time until an affected party attempts to challenge the provisions. Until then, trends from these cases will likely reveal the effectiveness of the legislation and whether the Nova Scotia legislature should rethink how much protection its Cyber-Safety Act truly provides.