The law firm of Stewart McKelvey published this brief summary of the new law:
Cyberbullying is defined in the Act as:
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 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.
A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.
If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:
a.) Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and
b.) Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.
Factors the court will consider in making this assessment include:
– The age of the child;
– The prior conduct of the child;
– The physical and mental capacity of the child, including any psychological or other medical disorders of the child;
– Whether the child used an electronic device supplied by the parent, for the activity;
– Any conditions imposed by the parent on the use by the child of an electronic device;
– Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and
– Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.
My time in Junior High was hellish enough without the internet and camera phones, so I shudder to think what it must be like today for those who don’t fit in.
But I also have little faith in the government’s ability to fundamentally understand, much less police, what happens online. And legislation hastily drafted in response to a moral outrage inevitably has serious problems.
Freedom of expression is not absolute. That’s why we have the tort of defamation, and laws against criminal harassment and “hate speech.” But not everything that might disturb you, or hurt your self-esteem, should be considered “bullying.” (I’m often accused of taking my political views way too seriously, and there’s no shortage of commentators who can get my back up almost every day. But does that harm my “emotional well-being,” or do I just need to lighten up?)
And in an age where, in most households, both parents are working, there is only so far a parent can go in supervising their children’s internet usage. It’s easy to delete your browser history (or turn on “private browsing”), so even the most diligent parent will not know everything that their son or daughter is posting. And even if they don’t have home internet access at all, the youngster can just go to any public library.
I don’t want children being bullied online (or offline, for that matter), but there are other societal values – especially freedom of expression, and people not being held legally responsible for things they didn’t know about – which should be kept in mind. If the Cyber Safety Act survives Charter scrutiny at all, here’s hoping the courts keep these principles in mind.
Update: Jesse Brown, technology columnist for Maclean’s, savages the new legislation:
…Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being cyberbullied by Chowhound critics.
The problems with anti-cyberbullying laws don’t end there. Once a law establishes some flawed definition, it moves on to enforcement. Here’s how Nova Scotia’s new Cyber Safety Act, which went into effect yesterday, will go about stopping online abuse:
Someone feels that you’re cyberbullying them. They visit or phone the court and request a protection order against you (minors , or some reason, cannot do so, only adults). A judge decides if their claim meets the law’s definition. The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”
If this is the standard, I don’t know a person who isn’t a cyberbully.