Nova Scotia’s supremely awful cyberbullying law is finally receiving a much-needed tweak, but it took a trip to the Supreme Court to do it. The law’s original wording was so broad it had the potential to “make bullies of us all,” as MacLean’s Jessie Brown put it when the law went into effect.
The law — hastily pushed through the legislative system in response to a cyberbullying victim’s suicide — contained this passage, which was open-ended enough to criminalize all sorts of previously-protected speech:
…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.
As attorney Karen Bennett-Clayton explains, this wording eliminates nearly every form of defense against cyberbullying allegations. (via Barry Sookman)
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).
Safeguards that are typically seen in defamation and harassment laws are completely missing from Nova Scotia’s cyberbullying law — which would explain why a person who felt himself a victim of defamation or harassment might take the easier route and use the badly-written cyberbullying law to shut down his “bully,” instead. And that’s true, even though much of what was said had not risen to the level of defamation, and much of what was contested occurred before the law went into effect.
The Supreme Court examined the law and the protective order issued by a lower court and found both wanting. As for the law’s wording itself, the Supreme Court found it too inclusive to be anywhere near reasonable and, in fact, a threat to normally protected speech. While the law is in place to address cyberbullying, the definition is vague enough to cover far more than internet communications. This has the potential to stymie news reporting through traditional channels, as well as cover “communications” never intended to be included in the cyberbullying law.
Both the ordinary meaning of “electronic” and the inclusive definition capture uses of electricity for communication that were common long before cyberspace (1984). Here are a few examples from the old days: cylinder phonograph records (1877); disc gramophone records (1894) including 78s (1898), long plays (1948), singles (1949), and extended plays (1952); studio cast recordings (1943 or before); broadcasting by way of commercial radio (1920s), commercial television (1928), walkie-talkie (1940), and citizens’ band (1948), and, of course; telegraph (1834) and telephone (1876), including fax (1964). All of these are within the definition of “electronic”, at least when it is read literally.
The Supreme Court continues, providing examples of how this badly-written law could be twisted to cover nearly every form of communication imaginable, so long as the communication itself causes “fear, intimidation or distress.”
The first thing to note in the definition of cyberbullying is the disconnect between the ordinary meaning of the word and the literal definition. One who communicates electronically, whether it be by text message or telephone, and says something reasonably expected to cause fear, intimidation, humiliation, or distress is a cyberbully.
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.
As the court sees it, the law demands the inclusion of a motivation — malice — and yet, its hurried passage failed to include this key element. Adding in that factor goes against the lower court’s finding and nullifies the protective order it issued.
The evidence does not malice as required, according to my interpretation, for a finding of cyberbullying after August 6, 2013. Firstly, the events after that date, except for the firstname.lastname@example.org e-mail, are relatively mild. Secondly, the full correspondence between Mr. Baha’i and Mr. Fraser about removal, which Justice of the Peace Gass did not see, shows efforts by Mr. Baha’i, an unanswered request for suggestions, and statements of Mr. Fraser’s assessment of Mr. Baha’i’s liabilities closing the discussion. This correspondence is inconsistent with malice on Mr. Baha’i’s part.
Mr. Self chose his forum. It is one in which Mr. Baha’i is entitled to disclosure and discovery, to fully test the many allegations. Unlike Cyber-safety Act proceedings, it is one in which the parties can find out who is email@example.com, rather than speculate. It is also a forum in which serious risk of defamatory repetition could be controlled by interim injunction, without the ex parte one-sidedness of the Cyber-safety Act. Despite this, the cyber protection order prevents Mr. Baha’i from communicating with the very person who is suing him.
The evidence satisfies me that malicious repetition by Mr. Baha’i is unlikely. Unlike Justice of the Peace Gass on the ex parte application, I have a full picture of the attempts to satisfy Mr. Fraser’s demands on behalf of Mr. Self. Whether he can force Mr. Baha’i to expunge what is not in his control, and whether he can recover damages against Mr. Baha’i for third party reproductions, risk of repetition by Mr. Baha’i is not in issue. Also, unlike the justice, I take into account that the Cyber-safety Act was not law when Mr. Baha’i was active on the present subject.
Summing up, the Supreme Court finds Nova Scotia’s cyberbullying law — as written — to be a threat to protected speech.
In my assessment, the damage caused by the cyber protection order to Mr. Baha’i’s constitutional right to free speech and to his property right to use his own equipment outweighs the potential harm to Mr. Self if Mr. Baha’i is able to communicate freely. Justice requires that the order be revoked.
This fixes one of the major holes in the law, and restores much-needed protections for uninvolved third-parties (social media platforms, ISPs) who can’t, by definition, show malice by hosting or transmitting communications made illegal by this law.
Unfortunately, it doesn’t address another of its major flaws — the wholly ex parte accusation process, which can result in severe penalties for the accused (loss of internet connection or access to electronic devices, gag orders, etc.) without being allowed to present their side of the issue in court.