Thursday, February 26, 2015

The disaster of the Nova Scotia cyberbullying law; it's time to go back to the drawing board

I often represent victims of true cyberbullying, including adults whose lives have been turned upside down by malicious online actors, so I am very sympathetic to the nominal goals of Nova Scotia's Cyber-safety Act. But the legislation fails to take into account -- in any way -- that all expression is protected by the Charter and can only be regulated or suppressed by reasonable limits, prescribed by law. The legislation is defective and has been enforced by the province in a manner that only makes it worse.

In Nova Scotia, any electronic speech that would reasonably be expected to cause someone distress or hurt feelings or harm to self-esteem is deemed to be cyberbullying. There are no defences. Here is the definition of cyberbullying from the Act:

(b) “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 [to] 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;

You may want to read that again, but focus on this bit: "any electronic communication ... that ought reasonably be expected to cause .. humiliation, distress or other damage or harm to another person's ... self-esteem or reputation...".

Every other Canadian law that tries to limit speech has defences, such as the defence of truth or fair comment under defamation law. Hate speech laws in the Criminal Code have defences. The Supreme Court of Canada, in Grant v Torstar, recently recognized that traditional defamation law was not compatible with the Charter because a diligent commentator on a matter of public interest would be found liable under existing rules so created a defence of "responsible communication on a matter of public interest." Under defamation law, you can call a convicted thief a thief, but if you dare tweet that in Nova Scotia or put it on a blog, you're a cyberbully.

We just have to look at how the Cyber-safety Act has been applied by the CyberSCAN unit to understand how incompatible it is with Charter protected expression. After a teenager started a twitter argument with MLA Lenore Zann, the CyberSCAN folks called an individual who regularly tweets about Nova Scotia politics and told him to remove his tweets or there would be unspecified "further action". His tweets questioned the judgement of an elected member of the legislature. He deleted his tweets. (See: Nova Scotia politician alleges cyberbullying, calls the authorities on tweeting teen)

On another occasion, the CyberSCAN folks met with an individual who was demanding financial transparency and accountability from his elected First Nations Band Chief. I will admit his questioning was inelegant and his frustration is apparent in his comments. (At one point, he apparently suggested she could use a punch in the face.) They told him to not communicate with or about her, and to remove any negative comments about her from the internet, or there would be "further action". When he reneged on his agreement to lay off, they went to court and got an order of the Supreme Court of Nova Scotia that forbids him from communicating with or about his elected representative, effectively cutting him out of the democratic process. The judge did not issue any written reasons for the decision. (See: More details about Nova Scotia's first cyberbullying prevention order)

Most recently, Frank Magazine has reported in its 29 January 2015 issue that a local, politically active twitter user and blogger received a late-night visit from from CyberSCAN unit. Here's how it was related in the Frank article:

"A government agent from the province's Cyberscan cyberbullying division came to my house and ordered me to take down my political blog," Eric tells me.

"Or they would get a court order, and... they would seize all my computers, cell phones, ban me from using the internet, fine me thousands of dollars and jail me for up to two years."

According to the Frank magazine article, the CyberSCAN officer, Lisa Greenough, refused to tell the individual who had filed the complaint or what was the substance of the actual complaint. He was essentially told to just stop participating in politics online. Or there would be consequences.

The CyberSCAN unit's modus operandi when it comes to political participation appears to be to tell folks to stop. Not to tone it down. Just stop. And the invariable "or there will be further action."

When the legislation was introduced, I was interviewed by CBC saying that it was likely unconstitutional. In a later interview with the Premier of Nova Scotia, they played him that clip with my critique of the law. He said he couldn't disagree with me more. Having the Premier of a province tell you that you're wrong surely would hurt my feelings and harm my self esteem. If he had tweeted it, would have been cyberbullying according to the law his government passed. The CBC put the article on their website, so they cyberbullied me by "assisting or encouraging". None of them would have intended to have hurt my feelings, but that doesn't matter under this province's bizarre law.

This law was passed less than one hundred feet from the statue of Joseph Howe at the legislature. But if Howe had been on Twitter, he would have been branded a cyberbully; his comments almost certainly hurt the feelings of the local magistrates and caused them distress.

Cyberbullying is a very hard thing to define, and the law's supporters said that it had to be very broadly defined but would be applied with judgement and discretion. I have not seen evidence of that. Though most of the CyberSCAN unit's activities have not been reported on, those cases that have hit the media or the courts show a complete disregard for freedom of expression. When I asked the CyberSCAN unit about how they incorporate this fundamental human right into their decision-making, this is the response I received:

The Charter was given careful consideration when the legislation was drafted. Any action taken is done following careful consideration to ensure it meets the essence of the legislation.

I would suggest that there is no evidence that the Charter was considered when the legislation was put together. And I seen no evidence that the Charter has been given consideration when the Act is applied.

Cyberbullying -- of kids and adults -- is a real issue that demands a real, meaningful response. However, the Cyber-safety Act of Nova Scotia is a disaster and the province's government needs to go back to the drawing board.

In case you are curious about the CyberSCAN unit, here are the questions I asked of the group and the answers I received:

1. How many employees (FTE) are there in the CyberSCAN unit?

There are five full time investigators, a Director, a case manager, and an administrative assistant that have additional duties associated with similar programs.

2. How many complaints or inquiries has the CyberSCAN unit received from victims of cyberbullying? Of these, how many are from adults and how many are from youth/children?

Since September 30, 2013, the unit has received 497 complaints that have initiated investigations.

3. How many files has the CyberSCAN unit opened in connection with complaints? Of these, how many are from adults and how many are from youth/children?


4. How many formal investigations have been launched by the CyberSCAN unit? Of these, how many are from adults and how many are from youth/children?

497 complaints received have involved the following:

Adult – 302 – adult reporting they are being cyberbullied

Guardian – 7 – guardian reporting on behalf of minor child

Parent – 76 – reporting on behalf of minor child

Referral by Police – 27

Referral by School – 66

Referral by Victim Services – 1

Youth – 19 – youth reporting they are being cyberbullied

5. How many complaints have been resolved informally by the CyberSCAN unit without having to open a file or launch a formal investigation?

There have been 163 informal resolutions.

6. How many Cyber Safety Prevention Orders have been applied for by the Director of Public Safety? Of these, how many are from adults and how many are from youth/children?

The Director has applied for and received 2 Prevention orders in court.

7. Does the CyberSCAN Unit have full time legal counsel assigned to it?

The unit utilizes Legal Services within the Department of Justice.

8. On the unit’s website, it says “The CyberSCAN unit will determine which alleged victims are at the most risk and respond to cases in order of priority.” How do you prioritize cases?

Cases are prioritized based on the potential harm to the individual.

9. Are there any formal or informal means by which the CyberSCAN unit takes Charter guaranteed freedom of expression rights into account in its activities?

The Charter was given careful consideration when the legislation was drafted. Any action taken is done following careful consideration to ensure it meets the essence of the legislation.

Full disclosure: I am representing clients in two separate cases that are challenging the Cyber-safety Act and its application on Charter and other grounds. I have also been a witness in an application to obtain a cyberbullying protection order.

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