The Nova Scotia Supreme Court has finally given some much-needed judicial interpretation to the broadly worded definition of cyberbullying contained in the Cyber-safety Act, SNS 2013, c.2.
The Cyber-safety Act came into force on August 6, 2013. It created both a tort of cyberbullying and also provided a procedure through which a complainant can seek a protection order against an individual or individuals to stop existing cyberbullying and prohibit future cyberbullying.
Both the tort and the protection order are based on the following definition of cyberbullying:
...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.1
This definition of cyberbullying captures a wide range of communication, from the truly insidious statements calculated to cause fear and intimidation to statements that are simply embarrassing or somehow harmful to the recipient's emotional well-being. The definition contains no requirement to show motive or intent, nor does it require that the communication be false or misleading. On a plain reading of it, true statements could be considered cyberbullying so long as they are repeated and are distressing or harmful to someone's self-esteem. Moreover, and as it includes those who "assist" in such communications, the definition is also arguably broad enough to include those who publish the electronic communication, such as web hosts or internet service providers (ISPs).
In Self v Baha'i, 2015 NSSC 94, the court considered the definition of cyberbullying in the context of whether it should vary, rescind or expand on a protection order. In considering this motion, the court was clearly troubled by the expansive definition of cyberbullying in the Cyber-safety Act, stating that it went "far beyond the ordinary meaning of the term." In particular, it was concerned with the definition's lack of requirement to show intent.
The following quote highlights the court's concerns and provides a range of scenarios that, on a plain reading of the definition in the Cyber-safety Act, would be cyberbullying :
[25] The next thing to note is the absence of conditions or qualifications ordinarily part of the meaning of bullying. Truth does not appear to matter. Motive does not appear to matter. Repetition or continuation might ("repeated or with continuing effect") or might not ("typically") matter. A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P. F. Sloan when he released "Positively 4th Street", just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper.
While the Bob Dylan reference may be lost on the under-40 crowd, the point is well made. The definition, as it stands in the Cyber-safety Act, goes well beyond what is ordinarily understood as bullying.
To remedy this, the court in Self v Baha'i determined the definition of cyberbullying in the Cyber-safety Act was intended to include malice.
This is a critical, and much-needed, interpretation.
Self v. Baha'i establishes that one must show evidence of the author's or publisher's malice in addition to the recipient's harm in order to satisfy the definition of cyberbullying. It imports the element of intent and ill will into the communication.
This will potentially have a profound impact on the future application of the Cyber-safety Act. For a plaintiff or complainant, it may make it more difficult to meet the definition of cyberbullying, whether that be for the purpose of obtaining a protection order or for pursuing a tort action in cyberbullying. For a defendant, it should have the effect of removing the innocuous or innocent communications from the definition of cyberbullying. It should also protect the passive web host and ISP publishers of the electronic communication in question from being the target of a cyberbullying claim.
Overall, the requirement to show malice should limit the cases of cyberbullying to those that perhaps were the intended target of this legislation.
Footnote
1 Cyber-safety Act, SNS 2013, c.2, s.2.
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