Ontario court adopts the "false light publicity" privacy tort

Regular readers of this (irregular) blog will recall the milestone case of Jones v Tsige, in which the Ontario Court of Appeal imported into Canada the US privacy torts. That list includes:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

The fourth cause of action, commercial appropriation of the plaintiff's image, was already alive and well in Canadian tort law. The Court in Jones applied the "intrusion upon seclusion" tort and subsequent cases have applied "public disclosure of private facts" (See Ontario court explicitly adopts new privacy tort: public disclosure of private facts.)

In December 2019, the Ontario Superior Court of Justice explicitly recognized the "false light" privacy tort. In Yenovkian v. Gulian, 2019 ONSC 7279, Justice Kristjanson was dealing with an unpleasant family law case in which the husband had made wild accusations against his former spouse, particularly related to their two children. The judge noted, with respect to the list of privacy torts:

[170] With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

[171] I adopt this statement of the elements of the tort. I also note the clarification in the Restatement’s commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.

While I don't propose to list all the misconduct the husband was found to have carried out, this summary at the beginning of the decision is helpful for context:

[2] It is also about a father, Mr. Vem Yenovkian, who has engaged in years of cyberbullying of the mother, Ms. Sonia Gulian on websites, YouTube videos, online petitions and emails. It is about a father who videotapes court-ordered access visits with the children—both in-person and on Skype—and edits and posts those access visits and photographs of the children on the internet, with commentary. It is about a father who publicly posts on YouTube a video of his son cowering under a table while the father harangues him over Skype on a court-ordered access visit. It is about a father who posts videos of him describing his daughter, who suffers from a neurological disorder, as looking drugged, when she used to be “normal,” and posting that his daughter has a “broken” mind.

[3] Despite court orders prohibiting posting, the father continues his cyberbullying campaign abusing Ms. Gulian and her parents. He seeks to undermine the administration of justice through an online campaign to “unseat” a judge of this Honourable Court for rulings made, internet attacks on trial witnesses and the wife’s lawyer, and by flouting court orders and family law disclosure obligations.

The Court in this case did not follow the $20,000 "cap" on non-pecuniary damages set out in Jones v Tsige, but rather followed the divergent train of thought started with the Doe case:

[186] There is no claim for pecuniary damages; the only issue is non-pecuniary damages. The infliction of mental suffering and invasion of privacy are based on many of the same facts.

[187] On damages for intrusion on seclusion, the Court of Appeal in Jones v. Tsige held at paragraphs 87-88 that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest, in a range up to $20,000. The important distinction with the two invasion of privacy torts in issue here, however, is that intrusion on seclusion does not involve publicity to the outside world: they are damages meant to represent an invasion of the plaintiff’s privacy by the defendant, not the separate and significant harm occasioned by publicity.

[188] The two Jane Doe cases have recognized that the cap on damages for intrusion upon seclusion may not apply to the other forms of invasion of privacy: Jane Doe 2016 at para. 58; Jane Doe 2018 at paras. 127-132. In this case, as is in those, the “modest conventional sum” that might vindicate the “intangible” interest at stake in Jones v. Tsige, para. 71, would not do justice to the harm the plaintiff has suffered.

[189] In Jane Doe 2016, at para. 52, Stinson J. turned to sexual battery cases for guidance in arriving at an award, and Gomery J. in Jane Doe 2018, at paras. 127-128 followed the same approach. In support of this approach, Stinson, J. pointed to the similarly of the psychological and emotional harm the plaintiff had suffered to that experienced by victims of sexual assault.

[190] I likewise adopt the method of looking to the factors applied to decide damage awards for a tort causing harms analogous to those the present plaintiff has suffered for invasion of privacy. The harm arising from the invasion of privacy in the present case is akin to defamation. Accordingly, in arriving at an award of non-pecuniary damages, I am guided by the factors described by Cory J. in Hill v Church of Scientology, at para. 187, which I am adapting to the tort of publicity placing a person a false light:

a) the nature of the false publicity and the circumstances in which it was made,
b) the nature and position of the victim of the false publicity,
c) the possible effects of the false publicity statement upon the life of the plaintiff, and
d) the actions and motivations of the defendant.

[191] In this case, the false publicity is egregious, involving alleged criminal acts including by Ms. Gulian against her children. The false publicity is widely disseminated on the internet, as well as through targeted dissemination to church friends and business associates. Ms. Gulian has suffered damage as a mother, as an employee, in the Armenian community, and in her church community. She is peculiarly vulnerable as the spouse of the disseminator of false publicity. The false publicity has had a detrimental effect on Ms. Gulian’s health and welfare, humiliation, caused her fear, and could be expected as well to affect her social standing and position. Mr. Yenovkian has not apologized, nor has he retracted the outrageous comments despite court orders.

[192] The damages for intentional infliction of mental suffering are intended to be compensatory. I award $50,000 compensatory damages for intentional infliction of mental suffering, relying on Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419.

Ontario Court of Appeal confirms online harassment conviction where threatening website was “about” the complainant but not a threat directed "to" the complainant

At a time when the courts and the rest of the justice system are grappling with how traditional Criminal Code offences and online misconduct intersect, the Ontario Court of Appeal has issued an important decision in R v. Sim on how criminal harassment can take place online. Often, police and others are stuck in an analog paradigm of traditional stalking and menacing.

In this case, the accused created an incredibly offensive website that was not directed at the complainant but was about her, and directed to a select audience that appears to have been intended to exclude her.

The accused used to work in the same building as the complainant lived. They became friends and when the accused showed a romantic interest in the complainant, the complainant made it clear that the feelings were not reciprocated. They went their separate ways, each married other people and started families. They communicated by email from time to time, apparently just to catch up on what the other was doing.

In the meantime, the accused created a Yahoo! Groups website that, according to a statement on the homepage, was dedicated to “the degradation and online spreading” of the complainant. He recruited at least 150 others to join the site. According to the Court:

[9] Sim posted extensive biographical details and photos of the complainant on the website. He authored false, degrading, vile, and grotesque sexualized commentary about her on the website’s messaging forum. He encouraged group members to post their own vile comments about the complainant, to author and share crude sexual fantasies involving her, and to alter photographs of her in a sexually degrading way and share those as well. …

The complainant became aware of the site in 2013 and, with the help of a friend, she created a username and password to get full access to the site.

The accused was charged with criminal harassment and publishing a defamatory libel. He was convicted of harassment and acquitted of defamatory libel. The accused appealed his conviction to the Ontario Court of Appeal, arguing that the necessary actus rea of harassment had been made out.

The accused had been convicted under paragraph 2(d) of section 264 of the Criminal Code:

(1) Criminal harassment – No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited conduct – The conduct mentioned in subsection (1) consists of …

(d) engaging in threatening conduct directed at the other person or any member of their family.

The trial judge acknowledged that if “threatening conduct” required a subjective intention to threaten the complainant, the accused should be acquitted for lack of evidence. But the judge decided that there was no such requirement; rather the question is whether the conduct is objectively threatening.

In 2008, the Ontario Court of Appeal in R. v. Burns determined that an objective standard was required for the actus rea of criminal harassment under paragraph 2(d):

To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to establish that the appellant engaged in “threatening conduct”. We accept the definition of threatening conduct given in R. v. George at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a “tool of intimidation which is designed to instill a sense of fear in the recipient”. The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regards to the effects those acts had on the recipient. [Citation omitted.]

With regard to the accused’s specific arguments, Laskin JA, on behalf of a unanimous Court, wrote:

[18] First, Sim’s submission is inconsistent with s. 264(1) of the Code and thus is contrary to Parliament’s express intent. Subsection 264(1) specifies that the mens rea component of criminal harassment can be met by an accused’s knowledge or recklessness. To suggest that the actus reus of threatening conduct requires a specific intent to instil fear is contrary to the plain language of s. 264(1).

[19] Second, as this court said in Burns, under s. 264(2)(d) the conduct in question must be viewed objectively. In other words, would the accused’s threatening conduct cause a reasonable person in the complainant’s situation to fear for her safety? The word “designed” does not require the Crown to prove the accused’s subjective intention. And, in assessing whether an accused’s conduct is threatening under s. 264(2)(d), a judge is not required to get into the accused’s mind.

[20] Instead, the word “designed” is meant to focus on the effect of the accused’s conduct on a reasonable person in the shoes of the target of the conduct. In Burns, this court clarified that the objective assessment must consider the circumstances in which the conduct took place, and the effects that the conduct actually had on the complainant. Although an accused's threatening conduct may not affect every target of that conduct, in every conceivable situation, it could well instill fear in a reasonable person in the complainant’s specific situation, particularly when the actual effects of the conduct on the complaint are considered. That is the case here. The trial judge did not err in finding that the Crown had established the actus reus of the offence.

While the site at issue was clearly about the complainant, there was no evidence that it was directed at the complainant in order to threaten her. This decision will hopefully reinforce the notion that the criminal harassment offence may be made out in cases where the accused creates “threatening” content about the victim, rather than directed to the victim.

[An earlier version of this case summary was written for the Canadian Technology Law Association’s newsletter.]

My comments on Nova Scotia's Intimate Images and Cyber-protection Act

Note: Because of very short notice, I will not be able to appear at the Nova Scotia Legislature's Law Amendments Committee to provide my views on Nova Scotia's new cyberbullying law. Here are my written comments that will be sent to the Committee for their consideration.

Thank you for the opportunity to provide my views on Bill 27, the Intimate Images and Cyber-protection Act.

I am a lawyer with McInnes Cooper whose practice is focused on internet and privacy law matters. I need to emphasise from the outset that these are my own personal and professional comments, and do not necessarily represent the views of my firm, its clients or any other organizations with which I am associated. I have been practicing in this area of law for over fifteen years. In this context, I am perhaps best known as being a vocal critic of the Cyber-Safety Act and being the lawyer who argued in Court that the old Act was unconstitutional.

If I could first comment on a matter of process, I am disappointed that I am not able to appear before the committee and answer any questions you may have. When this bill was first considered on October 16, 2017, I had less than one business day’s notice of the hearing and was out of town. I was advised on Thursday, October 19 that it would be before the committee on Monday, October 23. That’s one and a half day’s notice and I will be out of town on Monday. If the government were serious about getting this right, surely it would make it easier for experts to appear on the Bill. I am sure the Committee would benefit from testimony from Canadian Civil Liberties Association or the Canadian Bar Association, but these organizations can’t just drop tools, consult with their stakeholders and develop a coherent and helpful position with that kind of notice. I can name  at least five people who have immense expertise in the field of civil rights, cyberbullying, restorative justice and youth suicide who this Committee and Nova Scotians should hear from, but none will have a chance to provide their well-informed and expert views. I do not know if this is peculiar to this bill, but it certainly was the case with the original Cyber-Safety Act and Nova Scotians have suffered as a result.

In the meantime, the government has had a number of targeted consultations. I did meet with Justice officials twice to provide my views, with the final meeting commenting on a draft of the bill. I had some misgivings then which I’ll share with you today.

As I mentioned, I was the lawyer in the case that resulted in the Cyber-Safety Act being declared unconstitutional. I was previously very critical of the law and the former Premier said he “could not disagree with me more”. When that quote was posted by the CBC on their website, that cyberbullied me according to the law’s definition.

While the law was declared unconstitutional on December 10, 2015, it was unconstitutional on the day it was introduced on April 25, 2013, fewer than three weeks after the tragic death of Rehtaeh Parsons.

I stood up in court and called the Cyber-Safety Act a “dumpster fire”. Justice McDougall called it, much more politely, a “colossal failure” as far as the Charter is concerned.  

I argued, and the Court agreed, that the law had two principal failures. The first was that the definition of “cyberbullying” was far, far too broad and would include anything that could hurt someone’s feelings (including legitimate, political speech). The second failure was that a complainant could get a protection order without the alleged cyberbullying ever having an opportunity to defend themselves. The justice of the peace would make a decision on the basis of only hearing one side of the case. And the first that the respondent would hear of it would be when a police officer would show up at their house -- usually at night -- and serve them with the order.

I think both of these issues have been addressed in the new Bill. The definition of “cyberbullying” raises the bar much, much higher. It may be too high, by requiring “malice”, but it does capture communications that are intended to harm the victim. The issue of procedural fairness has certainly been addressed, but I am afraid the pendulum may have swung too far the other way.

The way the Bill sets it out, a victim of cyberbullying has only one option: to commence an application in the Supreme Court of Nova Scotia following the Nova Scotia Civil Procedure Rules. I have 100% confidence in the fairness of a judge of the Supreme Court. But forcing a victim of cyberbullying to start a conventional lawsuit will represent a huge barrier to access to justice.

What I am saying is completely contrary to my own pecuniary self interests. I am a lawyer who practices law in this area. My law partners much prefer that I charge clients for my time and for my services. We have a great pro bono program -- I think it’s one of the best in the country of any law firm that I am familiar with -- but I am not able to take the cases of all victims of cyberbullying. Going to the Supreme Court requires that a victim understand and follow Civil Procedure Rules. They’ll have to read and understand Rules 5, 4, 5, and 6. They have to prepare a notice of application in court and an affidavit, all according to the rules. They’ll have to hire a process server to serve the documents on the respondent. They likely have to be in court across from their tormentor to schedule the next steps and the court hearing. They get a written affidavit from the respondent. They can then maybe file another response affidavit. They can maybe cross-examine the respondent outside of Court, assuming they are in a position to pay a court reporting service to transcribe the cross-examination on an expedited basis. Then they have to file their brief. And then they have their day in Court, except they never get to directly tell a judge their story. They don’t get to testify on their own behalf, since their testimony is only in their affidavit.

I would expect it would cost at least $10,000 for me to represent an applicant in this process. That is daunting. But what’s equally daunting is the prospect of a traumatized cyberbullying victim having to find, let alone understand and precisely follow, the civil procedure rules. That greatly troubles me and I think it should trouble you.

The legislature should seriously consider a different approach. I do not think I have all the answers, but I would suggest that the legislature should consider a less formal approach that still preserves the procedural fairness that was lacking in the old Cyber-safety Act. While the procedure for a peace bond is not without its shortcomings, there should be a procedure through which an applicant can go to court and tell their story. The respondent has the same right to know what is being alleged, to appear, to present their story and possible justification. If neither adduced evidence about some of the essential factors to be considered under the Act, the judge can ask them questions. And a decision follows. This can be before the Supreme Court of Nova Scotia or a judge of the Provincial Court.

I do agree with sidelining the CyberSCAN unit from enforcement of the law. In my experience and in my opinion, they were the wrong tool for the job. While perhaps not representative of all the people with whom they interacted, I consistently heard from and about people whose political or legitimate Charter-protected speech was removed from the internet because they bullied the people into removing it under threat of unspecified “legal action” that could include removing their internet access. It may have been a matter of who they hired for the role or how they were led, but the CyberSCAN unit was part and parcel of the speech suppression that the law represented. When I asked Roger Merrick how the CyberSCAN unit took the Charter into account in doing their jobs, I was told that the legislature took it into account when the bill was passed by this House. That was clearly incorrect.

I do think the CyberSCAN unit or some replacement of it could go good things. Education and awareness is important. Providing support to victims is important. I am sure that victims will need a lot of help in figuring out how to have their day in court, and they can be a resource for that.

One final concern that I have is that the legislation says that if the victim is a minor, their parent or guardian has to commence the application on their behalf. There should be a mechanism by which a minor can do this on their own. First of all, there may be a case where the case relates to intimate images and the minor does not want to tell their parents. Secondly, I can imagine a scenario where the parent is either the perpetrator or is unwilling to help the child. Some safeguard needs to be in place to give a child direct access to the courts.

I do want to take the opportunity to praise the manner in which the non-consensual distribution of intimate images is treated in the statute. By separating this from the definition of cyberbullying, it will effectively shield this from being struck down if the conventional cyberbullying aspect is found to be unconstitutional.

Again, I regret that there was not enough notice for me to appear in person and answer any questions by the Committee. However, I am easy to find and I would be pleased to discuss this important matter with any Committee members or their staffers.

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.

British Columbia Commissioner finds that "Creep Catchers" violated province's privacy law

The Information and Privacy Commissioner of British Columbia has just released a very interesting decision and order against the "Surrey Creep Catchers". The Creep Catchers are a loosely affiliated group of people whose stated purpose is to expose online predators, particularly those who will then arrange to meet with children for nefarious purposes. Their modus operandi is to engage with people online, on dating sites and other sites, suggest they are underage and arrange a meeting. They then post video, chat logs, etc. to "expose" or shame the individuals.

In this case, two individuals who were targeted complained to the Information and Privacy Commissioner, who has found that the Creep Catchers violated the Personal Information Protection Act of BC. Most interestingly, the decision found (a) they are an "organization" for the purposes of the Act, (b) they are not engaged in journalism, so that exclusion doesn't help them, and (c) they cannot take advantage of the consent exceptions that apply for legitimate investigations.

A bit troubling is the uncritical following of the definition of journalism used in the Globe24h.com decision of the Federal Court. One will hopefully recall that case was uncontested and the Court simply adopted the restrictive definition put forward by the Office of the Privacy Commissioner of Canada:

[18] In order for s. 3(2)(b) to apply, the Organization must be collecting, using, or disclosing personal information for a journalistic purpose. In A.T. v. Globe24h.com, the Federal Court of Canada considered what constitutes journalism for the purposes of the analogous section of the Personal Information Protection and Electronic Documents Act (PIPEDA).

The “journalistic” purpose exception is not defined in PIPEDA and it has not received substantive treatment in the jurisprudence. The OPCC submits that the Canadian Association of Journalists has suggested that an activity should qualify as journalism only where its purpose is to (1) inform the community on issues the community values, (2) it involves an element of original production, and (3) it involves a “self-conscious discipline calculated to provide an accurate and fair description of facts, opinion and debate at play within a situation”. Those criteria appear to be a reasonable framework for defining the exception. None of them would
apply to what the respondent has done.

[19] I use the above three criteria to determine whether an organization is carrying out its activities for a journalistic purpose under s. 3(2)(b) of PIPA.

I have cautioned before that one should be cautious in applying Globe24h because the entire court case was unopposed and the Court appears to have simply adopted the OPC's argument without too much critical discussion.

It should also be noted that the BC statute applies to a broader range of "organizations" than PIPEDA, for example. If this case were to arise under the federal statute, I'm not sure the OPC would be able to find jurisdiction.

Here is the summary of the decision prepared by the OIPC:

Two individuals complained that an organization improperly collected, used and disclosed their personal information. The organization had induced each individual to have online communication with a fictitious woman over the age of 18, subsequently conveyed that this decoy was under the age of 16, and arranged a meeting to confront each man for attempting to lure a minor. The organization video-recorded the encounter and disseminated the video on social media. The Acting Commissioner found that the organization collected, used and disclosed the complainants’ personal information contrary to the Personal Information Protection Act because it had not obtained their consent and had no other authority to collect, use or disclose their personal information. He ordered the organization to stop collecting, using and disclosing the complainants’ personal information, to destroy all of their personal information in its custody or under its control, and to ask others who disseminated the information to remove and destroy it as well.​

Alberta law provides civil remedies for cyberbullying victims

Tort regarding non-consensual distribution of intimate images supplements recent criminal amendments

The Alberta legislature has passed a bill to provide civil remedies for victims of the non-consensual distribution of intimate images. Bill 202, Protecting Victims of Non-Consensual Distribution of Intimate Images Act, creates a new civil cause of action for what has become known “revenge porn” or non-consensual pornography. When the law comes into effect, in August 2017, it will be actionable in the province, without proof of harm, for anyone to distribute “an intimate image of another person knowing that the person depicted in the image did not consent to the distribution, or is reckless as to whether or not that person consented to the distribution”. The statute builds upon the criminal provisions for such actions added to the Criminal Code in Bill C-13 and closely follows the similar statute in Manitoba, the Intimate Image Protection Act.

An “intimate image” is defined as an image or video in which the person depicted is nude or includes the breasts, genitals or anal region, or depicts explicit activity. It is further defined with reference to the expectation of privacy that existed at the time the image was created or distributed:

(ii) which was recorded in circumstances that gave rise to a reasonable expectation of privacy in respect of that image, and

(iii) if the image has been distributed, in which the person depicted in the image retained a reasonable expectation of privacy at the time it was distributed;

Importantly, that expectation of privacy is not necessarily lost if the image was taken by another person or was given to another person where it was not to be further distributed:

Expectation of privacy
5 In an action for the distribution of an intimate image without consent, the person depicted in the image does not lose the expectation of privacy in respect of the image if that person

(a) consented to another person recording the images, or

(b) provided the image to another person,

in circumstances where that other person knew or ought reasonably to have known that the image was not distributed to any other person.

The bill also contains a public interest defence, which is similar to that found in the Criminal Code for other pornography and obscenity offences. Also of note, if the defendant in an action under the new law is a child, the statute specifically deems that the parent of the defendant will not be jointly and severally liable unless the parent “directly participated” in the distribution of the image.

Ontario court explicitly adopts new privacy tort: public disclosure of private facts

For anyone who was wondering: the arc of the common law is long and it bends towards privacy. The Ontario Superior Court of Justice has this past week expressly recognized the tort of "public disclosure of private facts".

This is a huge deal, as it explicitly expands the scope of privacy protection under the common law and stands as an example of how the traditional courts (and perhaps new-ish torts) can be called upon to help victims of cyberbullying.

Arising from a horrific case of revenge porn where the defendant had uploaded to the internet an explicit sexual video of the plaintiff, the Court in Doe v D., 2016 ONSC 541 (CanLII) [Edit: try this version -- I understand that CanLII may have inadvertently published some details contrary to the publication ban], said this about the ability to sue for invasion of privacy:

C. Invasion of Privacy

[34] In Jones v. Tsige, 2012 ONCA 32 (CanLII), the Court of Appeal for Ontario recognized the existence of the tort of invasion of privacy in the context of intrusion upon seclusion. In that case, the Court found that the defendant had committed the tort of intrusion upon seclusion when she used her position as bank employee to repeatedly examine private banking records of her spouse's ex-wife. While that case dealt with a significantly different fact situation, many of the Court’s comments are germane to this case, and I will therefore refer extensively to that decision.

[35] To begin with, the Court noted (at para. 15) that “[t]he question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years. Aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance and various property rights. Although the individual's privacy interest is a fundamental value underlying such claims, the recognition of a distinct right of action for breach of privacy remains uncertain.”

[36] The Court went on to recognize as authoritative a seminal American legal article on the subject by William L. Prosser, "Privacy" (1960), 48 Cal. L. Rev., noting that “Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. “

[37] The Court also noted (at para. 19) that “[t]he tort that is most relevant to this case, the tort of ‘intrusion upon seclusion’, is described by the Restatement [Restatement (Second) of Torts (2010)], at 652B as: ‘One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.’”

[38] The Court went on to note (at para. 20) that “[t]he comment section of the Restatement elaborates this proposition and explains that the tort includes physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff's private affairs. Of particular relevance to this appeal is the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, ‘even though there is no publication or other use of any kind’ of the information obtained.’” The Court commented that if the plaintiff in Jones had a right of action, it fell into the first category of intrusion upon seclusion, described by Prosser as comprised of the following elements:

• there must be something in the nature of prying or intrusion;

• the intrusion must be something which would be offensive or objectionable to a reasonable person;

• the thing into which there is prying or intrusion must be, and be entitled to be, private; and

• the interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.

[39] Later in its reasons, when considering the desirability of recognizing the tort of intrusion upon seclusion, the Court made a number of comments that are relevant to the issues in this case, including the following:

39 Charter jurisprudence identifies privacy as being worthy of constitutional protection and integral to an individual's relationship with the rest of society and the state. The Supreme Court of Canada has consistently interpreted the Charter's s. 8 protection against unreasonable search and seizure as protecting the underlying right to privacy. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.R. No. 36, at pp. 158-59 S.C.R., [page254] Dickson J. adopted the purposive method of Charter interpretation and observed that the interests engaged by s. 8 are not simply an extension of the concept of trespass, but rather are grounded in an independent right to privacy held by all citizens.

…

43 In Hill v. Church of Scientology of Toronto 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, Cory J. observed, at para. 121, that the right to privacy has been accorded constitutional protection and should be considered as a Charter value in the development of the common law tort of defamation. …

…

45 While the Charter does not apply to common law disputes between private individuals, the Supreme Court has acted on several occasions to develop the common law in a manner consistent with Charter values: [citations omitted].

46 The explicit recognition of a right to privacy as underlying specific Charter rights and freedoms, and the principle that the common law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages for intrusion upon the plaintiff's seclusion ….

…

67 For over 100 years, technological change has motivated the legal protection of the individual's right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of "the pressing need to preserve 'privacy' which is being threatened by science and technology to the point of surrender": "The Law and Privacy: the Canadian Experience", at p. 1. See, also, Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The Internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic databases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled and the nature of our communications by cellphone, e-mail or text message.

68 It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

69 Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. …

[40] The passage quoted immediately above most certainly applies to the case before me.

[41] While the facts of this case bear some of the hallmarks of the tort of "intrusion upon seclusion", they more closely fall within Prosser’s second category: “Public disclosure of embarrassing private facts about the plaintiff.” That category is described by the [Restatement (Second) of Torts (2010) at 652D as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”

[42] The comment section of the Restatement elaborates on this proposition as follows:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.

Although written in somewhat antiquated language, the concepts described are entirely apposite to this case. Among the illustrations offered by the Restatement is the following: “A publishes, without B's consent, a picture of B nursing her child. This is an invasion of B's privacy.”

[43] Prosser listed the features of this tort as follows:

• the disclosure of the private facts must be a public disclosure, and not a private one;

• the facts disclosed to the public must be private facts, and not public ones; and

• the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.

[44] Plainly, writing in 1960, Prosser was discussing events that might occur in a pre-Internet world, where the concepts of pornographic websites and cyberbullying could never have been imagined. Nevertheless, the essence of the cause of action he described is the unauthorized public disclosure of private facts relating to the plaintiff that would be considered objectionable by a reasonable person. In the electronic and Internet age in which we all now function, private information, private facts and private activities may be more and more rare, but they are no less worthy of protection. Personal and private communications and the private sharing of intimate details of persons’ lives remain essential activities of human existence and day to day living.

[45] To permit someone who has been confidentially entrusted with such details – and in particular intimate images - to intentionally reveal them to the world via the Internet, without legal recourse, would be to leave a gap in our system of remedies. I therefore would hold that such a remedy should be available in appropriate cases.

[46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]

[47] In the present case the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.

[48] I therefore conclude that this cause of action is made out.

Cyberbullying for family law practitioners (*not intended to be a how-to guide)

I was invited to speak with the Canadian Bar Association's Nova Scotia Family Law Section on cyberbullying law for family law practitioners. I was very happy to do so, given that many instances of cyberbullying arise from failed relationships and this will be a growing issue for family lawyers.

In case it is of interest, here is the presentation:

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?

SEE Q4

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.

Presentation: Cyber-bullying, the law and the courts (and freedom of expression)

I was invited to speak to journalism students at the University of King's College about Cyber-bullying, the law, freedom of expression and the courts. This is the second year I've been asked to give such a presentation and I focused on the problems created by laws that are drafted and passed during very emotional times. The Nova Scotia Cyber-safety Act is a perfect example of such a law: When it was introduced, I was quoted in the media as saying it was likely unconstitutional as an unreasonable infringement on our Charter rights to freedom of expression. The Premier of the province at the time, Darryl Dexter, responded to my critique by saying that he could not disagree with me more. Since that quote hurt my feelings and was published online, it fit within the grossly overbroad definition of cyberbullying contained in the statute he was responsible for. Which only just proves my point, since an honest opinion on a matter of public interest (particularly legislation) should never be made unlawful in our free and democratic society.

In any event, it was a pleasure to give the presentation and to speak with the very engaged students. In case the materials are of interest, here is the presentation:

#‎YouKnowHerName‬: Declare amnesty on breaking ban

I wrote this as an opinion for the Halifax Chronicle Herald, where it was printed on 19 November 2014:

The story of the past week has been the publication ban in the “high profile child pornography case” (Google it), when it should have been a discussion about sexual assault, child pornography and cyberbullying.

The police have investigated a number of instances of clear violations of the publication ban and have declined to press charges. They have also declined to provide a rationale, so that the rest of us have no guidance about whether we can discuss this incredibly important story without facing the wrath of the justice system.

The parents of the victim have said her name, over and over again. Social media is rife with mentions of her name. Foreign media have said her name in the context of her story. And this is a good thing, since we as a society have to come to terms with and learn from the horrible ordeal faced by a 15-year-old whose photo was taken and used to further abuse and bully her.

The rest of us are left wondering whether we would face the full brunt of the criminal justice system for saying a single word — her unique name — which has become synonymous with rape, cyberbullying and suicide.

The Criminal Code is clear: in all cases of child pornography, a judge must issue a ban prohibiting the publication or dissemination of the identity of the victim. This makes perfect sense. The last thing we as a society would ever want would be the re-victimization of a young person in the justice system or in the media.

Parliament, when the law was written, did not have this particular situation in mind and left the judge no wiggle room. The ban is mandatory.

However, the judge did make it clear in his decision when media outlets challenged the ban that there is a natural escape valve: even if the evidence shows a clear violation of the law and a slam dunk for a conviction, the prosecutor must determine whether the public interest is best served by the prosecution of the case.

The public interest would never be served by a prosecution of anyone for naming the victim in this case. But we are left with a situation where the rules are completely unclear and anybody discussing this case is standing on shaky ground.

It is time for the Attorney General of Nova Scotia or the Director of Public Prosecutions to publicly state that the public interest would not be served by any prosecution for saying her name and that they would not pursue charges against anyone for doing so.

And then we can stop talking about the publication ban and instead talk about the much more important issues of sexual assault and cyberbullying, and what we are doing about it.

David T.S. Fraser practises Internet and privacy law with McInnes Cooper law firm in Halifax.

Presentation: The legal response to cyber-bullying

This week, I led an internal McInnes Cooper continuing professional development session on cyberbullying and the legal response to it.

In case this is of interest to readers, here is the presentation:

My opening statement to the House of Commons Justice and Human Rights Committee on Bill C-13

Apparently my testimony tomorrow at the House of Commons Justice and Human Rights committee on Bill C-13, the Protecting Canadians from Online Crime Act will not be webcast. Nor will it be on C-PAC or available on Pay Per View at your local arena. So, in case you are interested in what I plan to say, here you go ... (subject to tweaking as I finalize the text)

Introduction

Thank you very much for providing me with the opportunity to speak with you today.

For the purposes of introduction, my name is David Fraser. I’m a partner with the Atlantic Canadian law firm McInnes Cooper, but I do need to emphasise that I am here speaking as a private individual and my comments should not be attributed to my firm, its clients or any other organization with which I am affiliated.

I have been practicing internet and privacy law for over a dozen years. I have represented a range of clients over the years, including victims of cyberbullying, victims whose intimate images have been posted online, and I have represented and advised service providers.

Most notably, I was part of a team at my firm that took the case of a 15 year old victim of cyberbullying to the Supreme Court of Canada, pro bono. This was the first time that the Court had the opportunity to consider the phenomenon of cyberbullying and the unanimous Court came out very strongly to protect the interests of the victim of sexualized cyberbullying.

I have also advised people who have been accused of cyberbullying. I hope that this experience from a number of different perspectives will provide this Committee with some assistance in its important task of considering Bill C-13.

Bill C-13 as a whole

I am disappointed that Bill C-13 combines two very different but related matters: the dissemination of intimate images, on one hand, and law enforcement powers more generally, on the other hand. Both aspects raise very important issues that merit close scrutiny but we are seeing that debate about police powers is overshadowing the discussion of cyberbullying.

That said, we have one bill in front of us and I’m pleased to provide you my thoughts.

Intimate Images

It has been suggested that Bill C-13, if it had been in force, could have saved Amanda Todd and Rehtaeh Parsons. That makes a good soundbite, but the world is much more complicated than that. Creation, possession and dissemination of child pornography is already a crime. So is the creation, possession and dissemination of voyeurism images. So is extortion. So is criminal harassment.

That said, there is a gap that we should fill: the malicious dissemination of intimate images without the consent of the person depicted in them.

We need to be very careful about how we craft this offence. The current reality is that young people and adults, whether we like it or not, take photos of themselves and voluntarily share them with intimate partners. Those digital images can easily be spread around without the consent of the of the person depicted.

We want to criminalize the boyfriend who posts pictures of his ex-girlfriend online without her consent -- so-called “revenge porn”. We want to criminalize the actions of the person who forwards around images of current or former intimate partners. In each of those cases, the individual would know -- or ought to have known -- whether they had the consent of the person depicted in the image.

But we shouldn’t inadvertently criminalize behaviour that is not blameworthy: someone finds a picture online of someone naked and forwards it to a friend. That person knows nothing about the circumstances in which the photo was taken. It could be a professional model. The photo may have been posted by the person in the photo herself. There’s no way to tell whether consent was obtained, whether there was any expectation of privacy at the time the photo was taken and the individual has no way of determining this.

The real challenge arises when addressing third parties who do not know the person depicted in the image, nor do they know the circumstances under which the image was taken. The provisions in the bill use a “recklessness” standard, which in my view is too low. Recklessness applies where a person should have looked into it but decided to be “willfully blind”. However, given the huge amount of naked images online, it is not possible to “look into it.”

This is especially important for online service providers who have no way of knowing and no way of finding out the circumstances under which an image was taken or uploaded.

We need to be especially attentive to crafting the law so that it will survive a challenge in the Courts and “recklessness” poses the risk of having the law struck down or making criminals out of people who are not truly blameworthy.

Police powers

Transmission data

Bill C-13 creates a “Production Order for Transmission Data” (section 487.016) and a “Warrant for Transmission Data Recorders” (section 492.2). It has been said that the purpose of the transmission data provisions of the Bill is to extend the current police powers -- that are coupled with judicial oversight -- related to telephony information to the internet age, without significantly extending the status quo.

While this may be a reasonable objective, this must be done very carefully because “transmission data” is significantly different from traditional telephony signalling data.

With conventional telephony, “transmission data” refers to the number called from, the number called, whether the call was completed and the duration of the call. In the internet context, the amount of information and what it reveals is dramatically different. It would include the IP address of the originating computer, information about the computer, the browser or other program being used, the internet communications protocol being used (web surfing, file transfer, peer-to-peer, voice over IP, video conferencing, etc.), the IP address or domain name of the server or computer being communicated with, URL of the page visited and whether the transmission was completed. An interception of “transmission data” would tell law enforcement agencies whether the target of the surveillance was visiting a search engine (and possibly what is searched for), an encyclopaedia (and again, what is being viewed), a poker site or a medical site. Furthermore, the data will also provide greater insight into the likely physical location of the surveillance target. This is a dramatic expansion of the information provided compared to traditional telephone communications.

Individuals use computer assisted communications in a very different manner than the telephone system. A telephone call is usually a singular event that creates one small packet of transmission data. A browsing session will create a new packet for each page or site visited, which amounts to many, many packets during a session. And information about what sites are visited and in what sequence also communicate -- by inference -- information about the content of that communications. Finally, individuals use web browsers for many purposes that go well beyond the traditional uses of telephones.

Even with the express exclusion of “content” from the definition, transmission data may provide insight into the content of the communications. And in any event, internet transmission data will provide law enforcement agencies with information that goes to the biographical core of the target of the surveillance, which triggers a need for heightened legal protections under s. 8 of the Charter.

The increased privacy intrusion represented by these new law enforcement powers can be mitigated in either of the following two ways:

(a) the extension of the current lawful access to telephony transmission data to other forms of transmission data should be accompanied by a higher threshold: from “reasonable grounds to suspect” to “reasonable grounds to believe”; or

(b) the definition of “transmission data” should be refined to strictly limit the scope of what is included so that it much more closely tracks telephony transmission data.

Notice to the affected individuals

On important element is missing from all of this … the individual whose information is being sought. I am of the view that the police or government agency seeking information about an individual should inform him or her as soon as doing so would not prejudice the lawful investigation. This should be no later than six months after the information is sought, unless a judge orders otherwise.

Immunity

The immunity provisions in the new s. 487.0195 are gravely problematic. This is a very cleverly drafted provision. We are told that this is simply “for greater certainty”, but everything we know suggests otherwise. It says you will not be liable for handing over any data that you are not prohibited by law from handing over, and if you do so you are civilly immune.

Only the criminal law creates real legal prohibitions. Handing over data might not be a criminal offense, but it may create civil liability. This civil liability is there for a reason. I may not be legally prohibited from accidentally - emphasis on “accidentally” -- hitting your car with mine, but I certainly should be liable to pay for the harm that I cause. This is an incentive for me to pay attention when I am driving. Likewise, service providers should have to think about all the interests involved before handing over data, willy-nilly. This provision should be removed. It cannot be fixed and will only encourage over-reaching by law enforcement.

This is not simply providing needed clarity, but taking rights away from citizens.

While we don’t have Bill S-4, the Digital Privacy Act, in front of us, I am concerned that we are weakening Canadians’ privacy under the guise of protecting it. While this immunity provision tells service providers, “it’s OK, hand it over”, the new provisions in S-4 underscore that and seem to allow any business to hand over customer information to police, government and other businesses without any due process and without any notice to the affected individual. This is a very regressive step

Cyberbullying legislation and freedom of expression

I was invited to lead a discussion at the Canadian Centre for Ethics and Public Affairs on Nova Scotia's cyberbullying legislation and its impact on freedom of expression. It was part of their "everyday ethics" series. Though it was much more of a discussion than a presentation with powerpoint, did did prepare the below presentation which may be of interest to readers of this blog. Feel free to share it.

More details about Nova Scotia's first cyberbullying prevention order

Yesterday, I blogged about the first cyberbullying prevention order issued under Nova Scotia's Cyber-safety Act. (See: Canadian Privacy Law Blog: Nova Scotia court issues first cyberbullying prevention order.)

At that point, all I had to go on was the media reporting. Since then, I've managed to get my mitts on the Order of Justice Robertson, the brief filed by the Nova Scotia Director of Public Safety, the affidavit of Chief Paul, and the affidavit of CyberScan Unit enforcement officer Dana Bowden. No copy of actual decision or reasoning of the judge is available. Hopefully that will be released shortly.

In the past, I've been critical of the over-breadth of the Cyber-safety Act and its definition of cyberbullying that can capture legitimate speech that is protected by the Charter of Rights and Freedoms. Most of the reporting on this case focused on comments that were characterised as harassing. The crown attorney went even further:

Crown attorney Angela Jones told the court that the comments made by Prosper were “defamatory, vulgar, … abusive and obscene.”

[None of the comments that I saw met the legal definition of "obscene".]

However, the contents of the affidavit seem to tell a different tale. While certainly the communications that were alleged to have been made by the respondent were what I would call unpleasant, sometimes vulgar and certainly repeated, it also appears to be rooted in questions related to the management of the finances of the Pictou Island First Nation overseen by the complainant. I didn't see any attempt anywhere in the documents to do anything less than shut the respondent down completely. The CyberScan investigator met with the respondent and told him to stop all of his communications with the Chief, not to tone it down.

While this is the first such order, it's a bit disheartening that a statute with the potential to dramatically chill constitutionally protected speech doesn't seem to be applied in a manner to temper this overreach, as was the case when a constituent of Nova Scotia MLA Lenore Zahn was told by the CyberScan Unit to remove tweets that questioned her judgement.

Nova Scotia court issues first cyberbullying prevention order

A judge of the Nova Scotia Supreme Court has issued the first "Cyberbullying prevention order" under the province's Cyber-safety Act.

The case, as it has been reported, appears to be a classic case of online harassment where the victim reportedly received numerous threatening messages through Facebook. When the user was "blocked", he then repeatedly communicated with the victim's children conveying threatening messages. I haven't seen the actual order yet, but it reportedly orders him to stop "cyberbullying" and communicating with or about the victim.

One additional point that's worth pondering is that the respondent to the order, who did not appear, is in Ontario which may make enforcing this order under Nova Scotia's unique law a challenge.

From Global TV (the link will also take you to a video where I was interviewed):

Nova Scotia court issues first cyberbullying prevention order - Halifax | Globalnews.ca

HALIFAX – A Nova Scotia Supreme Court judge has imposed a cyberbullying prevention order on a man who was accused of using Facebook to post threatening and defamatory statements about the chief of a First Nation.

The order is the first imposed by a court under the province’s Cyber-safety Act and involves allegations made by Andrea Paul, chief of the Pictou Landing First Nation.

She alleges Christopher George Prosper posted abusive and obscene comments about her and her family on Facebook last year.

Paul says she contacted the province’s CyberSCAN unit, which is the first of its kind in the country to be tasked with investigating complaints of cyberbullying.

Judge Heather Robertson told a Halifax courtroom that she was satisfied this was a case of cyberbullying under the act, saying Prosper’s actions hurt Paul’s reputation and psychological well-being.

David Fraser, a privacy lawyer with the McInnes Cooper firm in Halifax, says Nova Scotia’s cyberbullying legislation is ultimately doomed to fail.

“There is … a very real possibility that this legislation could be used to chill charter-protected speech, the ability of individuals to express themselves, the ability of individuals to be critical of their government, of public officials,” he said.

Fraser believes the bill will be challenged in the near future.

The court order is imposed for one year and it says Prosper must remove all messages deemed to be cyberbullying, refrain from contacting Paul and stop cyberbullying.

Getting the facts straight as we rush to legislate cyberbullying

Over the past number of months, Halifax Chronicle Herald reporter Selena Ross has been researching the failure of the authorities to lay any charges in the Rehtaeh Parsons case (until political pressure resulted in the case being reopened). This past week, she published her findings into the police investigation and the crown's refusal to lay charges. The fact that it has taken months to get this level of information speaks volumes. They also make depressing reading.

The tragedies of Rehtaeh Parsons and Amanda Todd galvanized attention on the issue and lawmakers have swung into action by passing laws to address it. First, we saw the Cyber-safety Act in Nova Scotia and more recently the federal Conservative government introduced Bill C-13, Protecting Canadians from Online Crime Act. The Nova Scotia statute creates a CyberScan unit, headed by a former cop, to investigate cyberbullying, allows for anti-cyberbullying orders and allows victims (with their parents permission) to sue cyberbullies. The proposed federal legislation makes it a crime to distribute intimate images without consent.

When these laws were introduced, there was much self-congratulatory back slapping about how we are finally doing something, with the clear implication that these laws would have saved the lives of Rehtaeh Parsons and Amanda Todd, if only they’d been in effect earlier. That is simply not true.

Rehtaeh Parsons and Amanda Todd died because the police and the prosecutors did not use the laws that existed to seriously investigate the crimes that they were already the victims of. Making up new crimes may be a useful endeavour, but saying that it was the absence of laws like these that was responsible for these horrendous tragedies is an outright lie.

Amanda Todd was the victim of extortion, harassment, and child pornography at the hands of an adult online and her peers. All of these were crimes the day she was born and continued to be crimes the day that she died. The Royal Canadian Mounted Police failed to investigate, failed to prosecute and failed to give her hope for justice. The British Columbia agencies charged with protecting children in the province failed her as well.

Rehtaeh Parsons was the victim of sexual assault, harassment, child pornography and voyeurism offences at the hands of her peers. All of these (other than the voyeurism offence) were crimes the day she was born and and all were crimes the day that she died. The Royal Canadian Mounted Police and the Halifax Regional Police Service failed to adequately investigate, failed to prosecute and failed to give her hope for justice.

Instead of stepping up and taking responsibility for the horrendous failure of those who are charged with protecting children, investigating and prosecuting crimes, police agencies and the politicians to whom they report have shrewdly deflected the attention of the media and the public towards new initiatives under the clear implication that it was the absence of these laws that failed these two young women.

While both laws (with their flaws) fill an important legal void as far as cyberbullying is concerned, the principal benefit to be derived from these laws is likely that it gives authorities fewer excuses to do nothing when children are the victims of such crimes.