Cyber-Safety Act Gives Nova Scotia Bullies The Ultimate Power

Nova Scotia's Cyber-Safety Act of 2013, which went into effect August 7, was conceived in response to a terrible tragedy. The suicide of 17-year-old Rehtaeh Parsons is just one of many suicides attributed to cyber bullying. Other tragic suicides were those of Tyler Clementi, Amanda Todd, Ryan Halligan, Megan Meier, Jamey Rodemeyer, and Audrie Pott. 

Many of these cases have been cited by local legislators as motivation for new legislation. Yet despite the indictment of two of her tormentors for child pornography charges under existing law, the new legislation in Nova Scotia is the furthest-reaching of all — and the most ill-considered. It risks turning every shouting match at a school sports game into a court case, and gives bullies the power to destroy their parents financially.

Jesse Brown of Macleans explains the broad law literally penalizes anyone who "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 wellbeing, self-esteem or reputation." By this standard, anyone could be a cyber bully. The Globe and Mail questions whether it will be used to attack even the most clearly political exercises of free expression.

The law directs that "a parent of the defendant is jointly and severally liable for any damages awarded to the plaintiff unless the parent satisfies the Court that the parent was exercising reasonable supervision over the defendant at the time the defendant engaged in the activity that caused the loss or damage and made reasonable efforts to prevent or discourage the defendant from engaging in the kind of activity that resulted in the loss or damage." Not only does that mean that parents can be held liable for the activities of their unattended child — "joint and several" suggests they may be held liable for the activities of other children. This includes "general, special, aggravated and punitive damages."

We might like to imagine a traditional family where Mom and Dad take the hint to watch their child closely. But we should remember that the law is not targeted at model children. The sort of kids who re-post child porn images or who harass a girl for allegedly being raped may not be considerate of their parents' wishes or even their own financial future. Kids like that could see an opportunity to threaten their parents (or one of their parents if divorced) to get their own way. Or, being young and foolish, perhaps they will simply act out in petulance.

As defendants, parents will no longer be in an impartial position to teach their children what is right. They will need to hire legal advisors and collaborate with their children and the parents of other children defending against legal action to paint the victim of bullying as an aggressor. With determinations made on a balance of probabilities, and the bullies (as always) having the advantage of numbers, the legal system itself could even be drawn into the cyberbullying. Using the extensive powers to compel evidence provided by the new act, court action could unearth embarrassing evidence from the victim's browser history and cell phone logs that creates opportunities for further ridicule.

The law tries to impose a sense of common sense by offering courts a great deal of leeway. It allows the court to take into account "all aspects of the conduct of the defendant." Whether parents' supervision is "reasonable" depends on factors such as age, disability, prior conduct, and "any other matter that the Court considers relevant." In addition to liability awards and injunctions, judges can "make any other order that the Court considers just and reasonable in the circumstances" or "any other provision that the justice considers necessary or advisable for the protection of the subject." Needless to say, failure to comply with these orders is punishable by jail.

With so much in the hands of Canada's courts, they will need to determine whether these powers are in accordance with the Charter right of free expression. Meanwhile, Alberta minister Sandra Jansen is reported to be considering similar legislation. Given the opportunity, will courts really use their broad discretion to prevent abuses of the law, or will they end up reinforcing broader social prejudices, replacing the cruel hierarchy of the schoolyard with the more formal inequities of society at large? The answers to such questions will soon become clear.