Friday, October 06, 2017

Nova Scotia introduces new anti-cyberbullying bill

On October 5, 2017, the Nova Scotia Liberal government introduced a new bill to replace the former Cyber-safety Act, which was struck down as unconstitutional (a "colossal failure", said the judge). The Intimate Images and Cyber-protection Act is the result of a serious re-think of all the defects found in the Cyber-safety Act.

Some important differences:

1. The bill has a much more narrow definition of "cyberbullying". The previous law would have considered anything done online that could hurt your feelings to be cyberbullying. In this version, the alleged cyberbully has to maliciously intend to cause harm or has to be reckless with regard to the risk.

(c) "cyber-bullying" means an electronic communication, direct or indirect, that causes or is likely to cause harm to another individual's health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual's health or well-being or was reckless with regard to the risk of harm to another individual's health or well-being, and may include

(i) creating a web page, blog or profile in which the creator assumes the identity of another person,

(ii) impersonating another person as the author of content or a message,

(iii) disclosure of sensitive personal facts or breach of confidence,

(iv) threats, intimidation or menacing conduct,

(v) communications that are grossly offensive, indecent, or obscene,

(vi) communications that are harassment,

(vii) making a false allegation,

(viii) communications that incite or encourage another person to commit suicide,

(ix) communications that denigrate another person because of any prohibited ground of discrimination listed in Section 5 of the Human Rights Act, or

(x) communications that incite or encourage another person to do any of the foregoing;

2. Applications are no longer ex parte. The accused cyberbully has to be given notice of the application and is given an opportunity to appear and respond to the allegations. This fixes the Charter s. 7 defect in the old law.

3. There are a range of defences available. One defect identified in the old Cyber-safety Act was that there were no defences available to an allegation of cyberbullying. In the new bill, there are a few that are intended to protect freedom of expression:

7(2) In an application for an order respecting cyber-bullying under this Act, it is a defence for the respondent to show that

(a) the victim of the cyber-bullying expressly or by implication consented to the making of the communication;

(b) the publication of a communication was, in accordance with the rules of law relating to defamation,

(i) fair comment on a matter of public interest,

(ii) done in a manner consistent with principles of responsible journalism, or

(iii) privileged;

(c) where the respondent is a peace officer acting in the course of the peace officer's duties, that the communication was necessary to prevent a crime or discover, investigate or prosecute the perpetrators of a crime and did not extend beyond what was necessary;

(d) where the respondent is a public officer acting in the course of the duties of the public officer's office, that the communication was necessary to fulfil the duties of that office and did not extend beyond what was necessary.

4. The bill addresses the non-consensual distribution of intimate images separately, which is a good thing. The language for this is essentially drawn from Criminal Code offence of distributing an intimate image without consent, but this bill provides civil remedies including an order for removal.

5. The CyberSCAN unit has no role in enforcement. I heard about a number of instances where the CyberSCAN unit itself bullied people to remove political content, so taking away their ability to do that is a good thing. The downside is that individuals don't have a publicly-funded organization that they can look to for legal remedies.

6. The remedies are all self-help. Applications for orders and damages go only to the Supreme Court of Nova Scotia, using the usual processes for applications under the complicated civil procedure rules. This will lead to self-represented litigants getting lost in the civil justice system or having to hire lawyers. I think I would have preferred a simplified process, similar to a peace bond, in the Nova Scotia Provincial Court.

7. Orders to prevent the identification of victims are virtually automatic. A publication ban to protect the identity of the complainant is automatic if the applicant is a minor and will automatically be granted on request to an applicant related to an intimate images proceeding. This is a good thing, as putting discretion in the hands of the court would discourage applicants from coming forward. They can proceed knowing their identity is protected and they will not be re-victimized by the court process.

8. The bill seems to anticipate possible diversion to restorative justice. How this will play out is anyone's guess, but it makes sense to encourage diversion where appropriate.

I expect I'll have more comments on it as I fully digest it, but these are the principal differences between the old and the new.

The government appears to be planning to spend the next few months consulting publicly, with the bill slated to pass in the spring of 2018.

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