Rethinking Cyberbullying

In 2013, Nova Scotia introduced the Cyber-safety Act (CSA). The legislation was unique for two key reasons.

Firstly, it expanded the definition of “cyberbullying” far beyond the schoolyard, including within the definition of any electronic communication either intended or reasonably expected to cause “fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation.” The CSA made no distinctions based on age or status, meaning both children and adults could be cyber-bullies or victims of cyberbullying.

Secondly, the CSA introduced a wide variety of novel remedies to curtail cyberbullying. It provided for protection orders to be obtained against cyber-bullies, with the possible content of such orders ranging from refraining from specific conduct to effectively banning a “cyber-bully” from receiving Internet service. Violating a protection order could lead, in turn, to fines or imprisonment.

In addition, the CSA created a tort of cyberbullying and provided mechanisms to hold parents accountable when their children engaged in the behaviour.

Despite the CSA’s well-placed intentions to address a social harm, it became apparent to many lawyers in Nova Scotia – even before the CSA had passed into law – that the broad net it cast over cyber-bullies could violate constitutional principles. So, the December 10, 2015 decision of the Supreme Court of Nova Scotia declaring the CSA to be unconstitutional in its entirety came as no surprise.

In its decision, known as Crouch v. Snell, Justice Glen McDougall held that the CSA violated the Canadian Charter of Rights and Freedoms, specifically the right to freedom of expression under Section 2(b) and the right to life, liberty and security of the person under Section 7. Justice McDougall also held that these infringements could not be defended as reasonable limits on Charter rights pursuant to Section 1.

His decision came shortly after the decision of Justice Gerald Moir, Self v. Baha’i, which also cast aspersions on the CSA’s definition of cyberbullying.

THE DECISION

Crouch v. Snell involved a dispute between two former business partners. Giles Crouch claimed that Robert Snell had engaged in a “smear campaign” against him through email and social media following the breakdown of their business relationship. On this basis, Crouch obtained a protection order under the CSA against Snell that, among other things, restricted Snell from communicating with or about Crouch. Snell sought to have the order revoked, and challenged the CSA’s constitutionality in the courts.

Justice McDougall had no difficulty in finding the CSA violated the right to freedom of expression and could not be justified by Section 1 of the Charter.

He was primarily concerned with the potentially arbitrary application of the CSA. Although it did not allow a protection order to be granted unless there were reasonable grounds to believe that the cyberbullying would continue, it did not provide any direction on how to determine if such grounds existed.

Justice McDougall also found that the CSA was simply far too broad in that it restricted both public and private communications, provided no defences and did not require any proof of harm.

Allowed to stand, the CSA would do more harm than good, as he found it did not achieve the appropriate balance between an individual’s right to free speech and society’s interests in providing greater access to justice to victims of cyberbullying.

Justice McDougall also held that the right to liberty was infringed. He noted that the CSA allowed a victim to seek and obtain a protection order without notifying the perpetrator or allowing him or her to state a defence, even where the identity of the cyber-bully was known. Once a protection order was in place, any violation of it risked prison time.

Justice McDougall held this system to be procedurally unfair and arbitrary in terms of how it might apply, and further found the definition of cyberbullying to be overbroad. In all these respects, the CSA was held to violate principles of fundamental justice in an unjustifiable manner.

Justice McDougall considered the possibility of striking out only parts of the CSA, or suspending the CSA and giving Nova Scotia’s provincial legislature time to fix it. However, he decided that the CSA was so fundamentally flawed that it could not be saved, calling it a “colossal failure” in terms of addressing the harms of cyberbullying without unduly limiting freedom of expression.

With this decision, Nova Scotia must completely reconsider its approach to cyberbullying.

Importantly, the one manner in which Justice McDougall approved of the CSA was with respect to its objectives, which he held to be pressing and substantial. He identified those objectives as creating efficient and cost-effective administrative and court processes to address cyberbullying and protect Nova Scotians from undue harm to their reputation and mental well-being.

His recognition that combating cyberbullying is a worthy objective illustrates that future legislative attempts to address cyberbullying are likely to occur. However, in light of the decision, any such attempt will have to be carefully considered and constructed.

CYBERBULLYING LEGISLATION IN OTHER PROVINCES

Nova Scotia may be inclined to look to other provinces for guidance. Five other provinces have specific legislative regimes targeted at addressing bullying and cyberbullying, but all of them take a decidedly different and less problematic approach.

Alberta, Manitoba, New Brunswick, Ontario and Quebec have chosen to address cyberbullying as part of the general anti-bullying strategies in each province’s existing Education Act (or the equivalent) rather than through standalone legislation. The remaining provinces do not have specific anti-bullying provisions in their legislation, although Newfoundland and Labrador gives the provincial education minister the right to issue policy directives on the subject.

These five provinces differ in the exact strategies they use to discourage bullying and cyberbullying.

• New Brunswick calls bullying “serious misconduct” and mandates an annual report to the provincial legislature from the education minister;

• Ontario and Quebec require school staff to have plans and policies in place to inform school staff and support victims;

• Alberta uniquely requires students to report bullying if they witness it, and reserves suspension and expulsion as possible consequences for students who do not; and

• Manitoba imposes reporting duties on school staff and principals, the latter of whom must inform a child’s parents. Manitoba is also the only province apart from Nova Scotia to introduce a functional distinction between bullying and cyberbullying; bullying only triggers the reporting requirements when it is particularly serious, whereas cyberbullying always triggers them.

The only aspect of the Nova Scotia decision that might be directly relevant to these other regimes is Justice McDougall’s analysis of the definition of “cyberbullying.”

One of his biggest concerns was that the definition of “cyberbullying” in the CSA does not require intent or proof of harm, and is far too broad.

Of the provinces with anti-bullying provisions in their statutes, only Alberta requires “bullying” to be intentional, and only Quebec requires that there be actual harm.

At the opposite end of the scale, New Brunswick does not define “bullying” or “cyberbullying” at all, despite using the terminology in its Education Act.

However, this broadness is unlikely to be problematic. In these other regimes, the entire concept of “bullying” is limited by virtue of being defined in the province’s Education Act or equivalent rather than a standalone statute. The definition is, therefore, understood to apply within the context of a school or a school-related activity, even when not explicitly defined as such.

Furthermore, these statutes primarily deal with bullying through reporting requirements, education and support programs; where direct punishment is contemplated, the remedies are generally confined to school-related discipline like suspension and expulsion. As a result, the potential violation of freedom of expression and liberty is vastly limited compared to Nova Scotia’s all-encompassing definition.

LOOKING FORWARD

Although Nova Scotia is the only province that will immediately feel the effect of Justice McDougall’s decision, it is sure to influence the future development of anti-bullying efforts across the country. The result of the ruling may be that efforts to combat cyberbullying will continue to focus on school-based programs, such as raising awareness among students and parents and providing training for teachers and school staff.

The decision should also allow adults, including businesspeople and professionals, to breathe a bit easier. The Cyber-safety Act greatly expanded the range of communications that could have exposed a person to legal actions, and equally expanded the range of consequences that could result.

With the CSA now invalid, any disputes among adults will once again be limited to more traditional crimes and torts, such as harassment and defamation.

But, as in Justice McDougall’s eyes, combating cyberbullying in all age groups remains a worthy and valid objective. If legislatures choose to follow such a course, it is clear everyone should contemplate that legislation monitoring adult behaviour will be reconsidered in Nova Scotia and, possibly, elsewhere, especially with the pervasiveness of blogs, social media, texting and email. It simply must be carried out through more restricted means than the CSA created.

Justice McDougall’s decision is a valuable guide in that respect. 

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