On August 6, 2013 the Nova Scotia Cyber-safety Act (the Act) was proclaimed. This legislation represents significant steps by Nova Scotia to address online bullying and, in the legislation's words, "provide safer communities."1 In doing so, Nova Scotia serves as an innovator in provincial legislation for combating cyber-bullying and other provinces will likely look to its successes and failures for guidance.
Recently, the Government of Nova Scotia has been under pressure to address youth safety, bullying and the dangers of social media. This pressure was ignited by the suicide of 17-year old high school student Rehtaeh Parsons on April 4, 2013. Ms. Parsons' family attributed her suicide to what was described publicly as several years of cyber- bullying after an alleged sexual assault when she was 15. Ms. Parsons' story brought media attention to issues such as cyber-bullying and the ways in which bullying behaviour has evolved through social media. The public responded by demanding greater action from police and government to help youth deal with cyber-bullying.
On April 25, 2013, less than a month after Ms. Parsons' death, the Government of Nova Scotia introduced legislation in response to cyber-bullying.
The Cyber-Safety Act
The Act is a multi-faceted attempt to make it easier for individuals to report bullying and to give the courts increased authority to protect victims of cyber-bullying. The main provisions of the Act are as follows:
- Greater powers and responsibilities to principals and school boards through amendments to the Nova Scotia Education Act.
- Parental responsibility for cyber-bullying in some circumstances;
- Creation of a cyber-investigative unit;
- Victims of cyber-bullying may apply for a protection order from the court; and
- New statutory tort of cyber-bullying which permits individuals to sue for damages or obtain an injunction.
Definition of Cyber-Bullying
The Act provides a broad definition of cyber- bullying that includes both adults and minors (less than 19 years of age). The Act defines cyber-bullying as:
[A]ny 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.
Greater Powers and Responsibilities of Educators
The Act grants school principals the power to discipline students for bullying that occurs both on and off school property.2 For example, a principal may suspend a student who engages in disruptive behaviour on property adjacent to the school or on a school bus. If a student engages in disruptive behaviour off school property that "significantly disrupts the learning climate at school," a principal may also suspend the student. The suspension may not exceed five days. In addition, school boards are required by the Act to cooperate with government agencies, such as Nova Scotia's new cyber-bullying investigative unit Cyber SCAN (discussed below), to promote a safe learning environment.3
Parents who do not prevent their minor children from engaging in cyber-bullying are deemed by the new legislation to engage in cyber-bullying. Where a minor engages in cyber-bullying, and a parent (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 is deemed to have engaged in cyber-bullying. As such, they may be found civilly liable for the damages caused by their minor children.
The Actestablishes Cyber SCAN, an investigative unit within the Nova Scotia Justice Department charged with responding to complaints of cyber- bullying and negotiating resolutions between bullies and victims. Cyber SCAN is the first investigative body of its kind in Canada. Although it has no authority to make orders, the unit's director has been granted discretion to take any action that he or she considers appropriate, including the power to request an internet service provider discontinue service to an Internet Protocol address.4 The director of the unit may also apply to the court for a protective order.
The Act also permits a victim, who has already made a complaint to Cyber SCAN, to file an application with the court for a protective order. Interestingly, the application may be made without notice to the respondent (bully)5 and the application may identify the respondent by Internet Protocol address if his or her identity is unknown.6 If the court is satisfied the respondent engaged in cyber-bullying and the bullying is likely to continue in the future, it may make a protection order.7 A court may make any order that it considers necessary for the protection of the bullying victim, including prohibiting the bully from contacting the victim or restricting the bully's use of electronic communication.
The Act states that cyber-bullying is a tort.8 As such, the Act grants the courts authority to award damages to a plaintiff, issue an injunction, and make any other order the court considers just and reasonable. Further, the parent of a cyber-bully who is a minor is jointly and severally liable for any damages awarded to the plaintiff. The parent may only escape liability if it can be demonstrated that he or she exercised reasonable supervision of the cyber-bully and made reasonable efforts to discourage the child from engaging in cyber-bullying.
Reaction to The Act
The Act has faced several criticisms. First, critics argue that the Act's definition of cyber-bullying is too broad and will enable individuals to bring applications before the court for "hurt feelings." Second, media have questioned the application process established by the Act whereby individuals can bring applications for protective orders without notifying the respondent. Third, concerns have been raised regarding whether the legislation violates an individual's Charter of Rights and Freedoms guarantee of freedom of expression.
Criticism of the Act focuses on doing more to protect victims of cyber-bullying. For instance, critics note that existing Criminal Code provisions, such as anti-harassment provisions, are rarely invoked and provide little protection. However, critics have also questioned if the Act has gone too far.9
The Nova Scotia legislation has also ignited interest from other provinces. Alberta's Associate Minister of Family and Community Safety, Sandra Jansen, has expressed interest in studying the Act. In addition, Alberta's Wild Rose party has indicated it will introduce a private member's bill in the fall similar to the one in force in Nova Scotia.10 However, whether other provinces follow in Nova Scotia's footsteps may have to wait until the effectiveness of the Act can be assessed both by governments and perhaps in the courts.
1 Cyber-safety Act, SNS 2013, c 2, at s 2.
2 Ibid. at s. 26.
3 Ibid. at s. 25.
4 Ibid. at s. 33.
5 Ibid. at s. 5(1).
6 Ibid. at s. 5(3).
7 Ibid. at s. 8.
8 Ibid. at s. 21.
9 "Legislators should ask if Nova Scotia's aggressive Cyber-safety Act is worth the price", The Globe and Mail
10 James Wood, "Alberta minister to examine Nova Scotia's Cyber Safety Act", Calgary Herald (August 9, 2013). Online: http://www.calgaryherald.com/news/alberta/Alberta+minister+examine+Nova+Scotia+Cyber+Safety/8766879/story.html.
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