Analysis of the Nova Scotia Anti-Cyberbullying legislation

As I blogged yesterday, the Nova Scotia provincial government has tabled a bill in the provincial legislature to address cyberbullying. The Bill, dubbed the Cyber-safety Act, does a number of notable things. Notably, it is not limited to protecting minors from cyberbullying and is equally available to adult and child victims.

It must be borne in mind that the Bill has only just been tabled, so it may be amended as it works its way though the legislature and its committees.

It the Bill, cyberbullying is defined:

(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 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;

Interestingly, the Bill deems some parents to be cyberbullies themselves if they don't do enough to prevent their minor children from engaging in cyberbullying:

(2) For the purpose of this Act, w here a person who is a minor engages in an activity that is cyberbullying and a parent of the person

(a) knows of the activity;

(b) knows or ought reasonably to expect the activity to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation; and

(c) fails to take steps to prevent the activity from continuing,

the parent engages in cyberbullying.

Cyberbullying Protection Orders

First of all, the Bill creates "cyberbullying protection orders", which are orders issued by the courts to require an individual to cease activities that will be prescribed in the order. The order can be broad or narrow, and the bill gives the courts wide latitude:

9 (1) A protection order may include any of the following provisions that the justice considers necessary or advisable for the protection of the subject:

(a) a provision prohibiting the respondent from engaging in cyberbullying;

(b) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating with or contacting the subject or a specified person;

(c) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating about the subject or a specified person;

(d) a provision prohibiting or restricting the respondent from using a specified or any means of electronic communication;

(e) an order confiscating, for a specified period or permanently, any electronic device capable of connecting to an Internet Protocol address associated with the respondent or used by the respondent for cyberbullying;

(f) an order requiring the respondent to discontinue receiving service from an Internet service provider;

(g) any other provision that the justice considers necessary or advisable for the protection of the subject.

One thing that I find very interesting -- and disappointing -- is that if the victim is a minor, he or she cannot seek such an order him or herself. His or her parents have to seek the order on their behalf. One would think that at least older teenagers should be able to help themselves, even if their parents don't want to get involved.

A new tort of cyberbullying

Next, the Bill creates a brand-new tort of cyberbullying, which gives a victim of cyberbullying the right to sue in the civil courts for damages. This part is pretty short on details, so I expect the provincial government is leaving it to the courts to sort out.

21 A person who subjects another person to cyberbullying commits a tort against that person.

22 (1) In an action for cyberbullying, the Court may

(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;

(b) issue an injunction on such terms and with such conditions as the Court determines appropriate in the circumstances; and

(c) make any other order that the Court considers just and reasonable in the circumstances.

(2) In awarding damages in an action for cyberbullying, the Court shall have regard to all of the circumstances of the case, including

(a) any particular vulnerabilities of the plaintiff;

(b) all aspects of the conduct of the defendant; and

(c) the nature of any existing relationship between the plaintiff and the defendant.

In addition, the Bill makes the parents of a minor cyberbully jointly and severally liable for all the damages unless the parents are able to show due diligence. It is understandable that the government would include this provision, since young cyberbullies likely do not have any assets of their own (making a civil lawsuit futile) and to perhaps dip into the homeowners or renters insurance policies that parents may have.

(3) Where the defendant is a minor, a parent of the defendant is jointly and severally liable for any damages awarded to the plaintiff unless the parent satisfies the Court that the parent was exercising reasonable supervision over the defendant at the time the defendant engaged in the activity that caused the loss or damage and made reasonable efforts to prevent or discourage the defendant from engaging in the kind of activity that resulted in the loss or damage.

(4) For the purpose of subsection (3), in determining whether a parent exercised reasonable supervision over the defendant at the time the defendant engaged in the activity that caused the loss or damage or made reasonable efforts to prevent or discourage the defendant from engaging in the kind of activity that resulted in the loss or damage, the Court may consider

(a) the age of the defendant;

(b) the prior conduct of the defendant;

(c) the physical and mental capacity of the defendant;

(d) any psychological or other medical disorders of the defendant;

(e) whether the defendant used an electronic device supplied by the parent, for the activity;

(f) any conditions imposed by the parent on the use by the defendant of an electronic device;

(g) whether the defendant was under the direct supervision of the parent at the time when the defendant engaged in the activity;

(h) in the event that the defendant was not under the direct supervision of the parent at the time at the time when the defendant engaged in the activity, whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant; and

(i) any other matter that the Court considers relevant.

The tort of cyberbullying would be in addition to any other causes of action that might be brought to bear, including defamation and intentional infliction of emotional distress.

Powers given to the Director of Public Safety

The provincial government has promised, as part of this legislation, to create a specialized unit to combat cyberbullying. This is being done as amendments to the existing Safer Communities and Neighbourhoods Act. This Act has generally been used to deal with crackhouses and the like, but an additional part allows for the designation of "Directors of Public Safety" who will have particular powers to investigate and respond to cyberbullying. (To show how this Act is amended by the bill, I've created a Google doc that shows the proposed changes.)

The Director is given the power to investigate cyberbullying and can seek the assistance of the courts to unmask anonymous miscreants. Once identified, the Director can make an application to the court for a cyberbullying prevention order. The prevention orders are very similar to the protection orders outlined above (I'm not sure why it is duplicated in the Safer Communities and Neighbourhoods Act and the Cyber-safety Act).

It is an offense to defy such an order when issued.

Amendments to the Education Act

The Bill also proposes amendments to the existing Education Act. First of all, it adds the promotion and encouragement of safe and respectful electronic communications to the mandate of the school system. But more importantly, it gives school principals explicit jurisdiction over outside of school activities that are disruptive to the school environment:

122 Where a student enrolled in a public school engages in

(a) disruptive behaviour or severely disruptive behaviour on school grounds, on property immediately adjacent to school grounds, at a school-sponsored or school-related activity, function or program whether on or off school grounds, at a school bus stop or on a school bus; or

(b) severely disruptive behaviour at a location, activity, function or program that is off school grounds and is not school-sponsored or school-related, if the behaviour significantly disrupts the learning climate of the school,

the principal, or the person in charge of the school, may take appropriate action as specified in the Provincial school code of conduct policy including suspending the student for a period of not more than five school days.

My overall impression

Overall, I think this legislation is an important step. Up until this Bill was tabled, most of the discussion of the issue recently has focused on possible amendments to the Criminal Code. Based on what I've seen reported about the Rehtaeh Parsons case points to a serious failing on the part of the criminal justice system (and the mental health system), not the criminal law. But in any event, the phenomenon of cyberbullying is a very complicated one, and one that cannot be fixed or even properly addressed by the criminal law alone. This bill specifically puts a degree of responsibility in the school system and provides the means to establish a group of specialists who have appropriate tools to investigate and respond to cyberbullying. Finally, it gives victims and their parents the ability to proceed through the civil justice system for the harm of cyberbullying. Of course, much depends on how this is implemented and I'm sure many here in Nova Scotia will be paying close attention to that.

Discussions about online bullying and harassment

The tragic story of Amanda Todd, a Victoria-area teenager who took her own life after a long period of being stalked and extorted by an adult and bullied by her peers, has placed a renewed focus on online bullying in Canada.

Over the past week, I've contributed to a number of discussions on the topic, including the following:

Catching Cyberbullies | Day 6 with Brent Bambury | CBC Radio: In the wake of Amanda Todd's suicide, cries for justice have echoed around the world. Millions have watched the heart wrenching YouTube video where she describes how she was targeted online and bullied at various schools. Hundreds of thousands have signed petitions and called for law enforcement to arrest the cyberbullies and predators who tormented her for years. Privacy, Internet and media lawyer David Fraser discusses some of the complexities of this type of case. [Audio of interview to be broadcast on October 20, 2012 is available here]

Cyberbullying Panel | CBC The National | CBC TV: Following the death of Amanda Todd, Wendy Mesley hosts a panel on the desire for justice in cyberbullying cases and if the legal system should get involved. [Video, originally broadcast October 19, 2012 is available here (skip to about 30 minutes in]

Interview with Paul Hollingsworth | CTV Atlantic

Supreme Court upholds children's privacy, allows cyberbullying victim to proceed anonymously

The Supreme Court of Canada's decision in AB v. Bragg Communications, 2012 SCC 46 has just been released and the Court has allowed the appeal in part. The decision supports the right of a child victim of cyber-bullying to proceed in the civil courts anonymously.

In the interests of full disclosure, I need to state that my firm represented the victim and my partners Michelle Awad and Jane O'Neill argued the case at the Supreme Court of Canada.

Here is the headnote:

Courts — Open court principle — Publication bans — Children — 15‑year old victim of sexualized cyberbullying applying for order requiring Internet provider to disclose identity of person(s) using IP address to publish fake and allegedly defamatory Facebook profile — Victim requesting to proceed anonymously in application and seeking publication ban on contents of fake profile — Whether victim required to demonstrate specific harm or whether court may find objectively discernable harm.

A 15‑year old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl’s appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. The judge stayed that part of his order requiring the Internet provider to disclose the publisher’s identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father’s real names. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media.

Held: The appeal should be allowed in part.

The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying.

Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law and results in the protection of young people’s privacy rights based on age, not the sensitivity of the particular child. In an application involving cyberbullying, there is no need for a child to demonstrate that he or she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament.

While evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm. It is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon. Since children are entitled to protect themselves from bullying, cyber or otherwise, there is inevitable harm to them — and to the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure. Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl’s anonymous legal pursuit of the identity of her cyberbully should be allowed.

In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, prohibiting identity disclosure was found to represent only minimal harm to press freedom. The serious harm in failing to protect young victims of bullying through anonymity, as a result, outweighs this minimal harm. But once the girl’s identity is protected through her right to proceed anonymously, there is little justification for a publication ban on the non‑identifying content of the profile. If the non‑identifying information is made public, there is no harmful impact on the girl since the information cannot be connected to her. The public’s right to open courts –and press freedom – therefore prevail with respect to the non‑identifying Facebook content.

Landmark cyberbullying and children's privacy decision expected from Supreme Court of Canada

The Supreme Court of Canada will tomorrow release its decision in the appeal of A.B. v. Bragg Communications Inc., 2011 NSCA 26. At issue is whether a young person can initiate a legal proceeding under a pseudonym in circumstances where the young person is seeking information to identify a cyberbully. In addition, the Court will consider the imposition of a publication ban on the details of the underlying defamation.

Here are the details from the SCC:

Supreme Court of Canada - Decisions - Judgments to be Rendered in Appeals

34240 A.B. by her Litigation Guardian, C.D. v. Bragg Communications Incorporated, a body corporate and Halifax Herald Limited, a body corporate

(Publication Ban in Case) (Sealing Order)

Civil procedure ‑ Confidentiality orders ‑ Defamation ‑ Appellant applying for order requiring disclosure of identity of persons who used particular IP address to create fake profile on Facebook ‑ Appellant also applying for permission to proceed by way of initials and for order prohibiting publication of allegedly defamatory statements in profile ‑ Whether a minor seeking a civil remedy for online sexualized bullying should be entitled to bring a motion to determine the identity of the intended defendant using a pseudonym and under a publication ban concerning the substance of the statement ‑ Whether a court should take notice of the inherent vulnerability of young people subject to online sexualized bullying and the serious risk of harm to them if they are required to republish the comments and reveal their identity to seek a remedy, in considering if a confidentiality order and publication ban should be granted ‑ Whether a court can invoke its parens patriae jurisdiction to protect a child, in considering whether a confidentiality order and publication ban should be granted for a child subject to online sexualized bullying ‑ Whether media that choose to intervene in a motion for a publication ban should be entitled to costs if the motion is not successful, particularly when the motion involves interests broader than those of the applicant.

The appellant became aware of a fake profile on the social networking website Facebook, which included a photograph of the appellant, a slightly modified version of her name, and other particulars which identified her. The fake profile also discussed the appellant’s physical appearance, her weight, and allegedly included scandalous sexual commentary of a private and intimate nature. The appellant, by her litigation guardian, applied in chambers for an order requiring the respondent Bragg Communications to disclose the identity of the persons who used a particular IP address to perpetrate the alleged defamation. As additional relief, the appellant sought an order which would allow her to proceed by pseudonym (initials), and as well, a partial publication ban to prevent the public from knowing the words contained in the fake Facebook profile. LeBlanc J. granted the disclosure order but refused the additional relief sought. The Court of Appeal upheld that decision.

Origin of the case: Nova Scotia

File No.: 34240

Judgment of the Court of Appeal: March 4, 2011

Counsel: Michelle Awad, Q.C. for the appellant
Daniel W. Burnett as Amicus Curiae

Youth Privacy Online: Thursday, September 4, 2008

The Information and Privacy Commissioner of Ontario is hosting a special one-day conference, Youth Privacy Online: Take Control, Make It Your Choice, being held on September 4, 2008, at the Marriott Eaton Centre in downtown Toronto.

According to the Commissioner's invitation:

"My office is hosting this conference in order to provide a forum for discussion, debate and inquiry that will focus on exploring approaches to safeguarding the privacy of children and youth on the Internet. The conference will bring together professionals from a diverse range of public and private sector organizations who have a keen interest in helping children and youth protect their privacy online.

Online social networking, and innumerable other interactive applications on the Internet, have become a part of everyday life for youth today. There are growing concerns, however, that many young people do not fully understand the risks associated with revealing too much information about themselves. These risks range from cyberbullying, identity theft and Internet luring, to putting future job prospects at risk. Speakers and panelists at this special one-day event will identify the key issues and explore a variety of innovative approaches.

Please join us on Thursday, September 4, at the Marriott Eaton Centre in Toronto, for this important conference. There is extensive information about the conference, including about how to register, at http://www.youthprivacyonline.ca/"