Friday, August 16, 2013

New cyberbullying law half-baked

I was asked to write an opinion piece for the Chronicle Herald, setting out my concerns about Nova Scotia's new Cyber-safety Act. It's in today's paper:

New cyberbullying law half-baked | The Chronicle Herald

One would have to have the hardest of hearts to be unaffected by the Rehtaeh Parsons tragedy. I have seen firsthand the devastating effect of cyberbullying and my firm is very proud to have taken the case of a young victim to the Supreme Court of Canada to protect her from further torment.

It is also a very human impulse to want to do something — anything — to make sure that nobody else is victimized again. Unfortunately, the wake of a tragedy is never a good time to make good law, and that’s unfortunately the case with the province’s Cyber-safety Act. The act was drafted in the heated, emotional time immediately after Ms. Parsons’ death and jammed through the legislature with no critical examination and discussion. Comments from interested groups were not solicited and anyone who would have wanted to suggest improvements was caught flat-footed by the hasty way it sailed through committee.

And as of this past week, most of it is the law of the province.

Cyberbullying seems to be like obscenity — it is very difficult to define, but we know it when we see it. However, definitions matter in the law.

In this particular law, the net has been cast so wide that it is likely unconstitutional. The most significant problem is with the definition of “cyberbullying,” which includes electronic communications that do or would be expected to harm someone’s self-esteem or reputation.

That bar is so low that most politicians’ Twitter feeds are littered with cyberbullying. Satirists and editorial cartoonists — if they’re any good — are cyberbullies in Nova Scotia. Protecting self-esteem may be sensible when dealing exclusively with minor victims, but it must be remembered that this law and the flawed definition apply regardless of age.

I spoke critically of the act when it was first introduced and the premier told CBC he “couldn’t disagree with me more.” It hurt my feelings. If he were to say that today on Facebook or Twitter, I could call him a cyberbully and sue him. I have a thick skin and will not be suing anyone who simply disagrees with me, but I find it troubling that I can seek damages for such speech in the same province where Joe Howe argued for, and won, our fundamental rights of free expression.

Surely, it cannot have been the legislature’s intention to lump legitimate satire, political speech and fair comment in with the shaming Ms. Parsons experienced, by calling it all “cyberbullying.” That’s what they did, unfortunately, and that’s why it’s unconstitutional. According to the Supreme Court, any infringement of freedom of expression needs to be justifiable and cannot impair the right more than is necessary to accomplish the legitimate legislative objectives.

In other words, it must be precisely targeted and not overbroad. A law that does not “minimally impair” Charter-protected speech rights cannot be justified and is of no force and effect. Including satire, fair comment and legitimate political speech would be overreaching that imperils the entire statute.

The legislature also made a mistake by not giving courts more guidance on how cyberbullying protection orders should be used. The list of remedies is extensive, ranging from a simple order not to be a cyberbully to the confiscation of electronic devices and forcing the alleged bully back to the pre-electronic age.

The legislature did not say that the more draconian orders should be reserved for the most serious of cases or that the more extreme measures should only be used when the lesser ones have failed.

To make it worse, if the bully were harassing his or her victim using a school computer, an order as written in the act could cut the entire school off from the Internet.

While the legislature has made it very easy to get over-reaching orders, it also took away most of the avenues of judicial review that would act as a check on these powers. The warrantless investigative powers given to the CyberSCAN units would make Vic Toews jealous and, as a result, the evidence they obtain might be useless in a criminal prosecution.

The legislature has actually done a disservice to those they desperately want to help by hastily passing a law that will likely be struck down when the first victims go to the courts seeking assistance.

I expect it will be traumatic to the victims to not only have their cases thrown out, but to have the entire law designed to protect them declared to be unconstitutional.

An unconstitutional law is merely window-dressing and — when struck down — it’s an embarrassment. If the government really wants to protect victims of harmful cyberbullying, it should take this law back to the drawing board and do it right.

David Fraser is an Internet and privacy lawyer with McInnes Cooper in Halifax who has acted as legal counsel to victims and online service providers in cases of cyberbullying. These opinions are personal and should not be attributed to the firm or its clients.

No comments: