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
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
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
 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
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
Software license agreements generally require the customer to pay fees for the software license and related services, which fees are usually based upon the duration of the license and the manner in which the customer is allowed to use the software, together with applicable taxes and withholdings.
In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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