A controversial cyberbullying law in the Canadian province of Nova Scotia has been found unconstitutional by the province’s supreme court. This law was the first of its kind in Canada, and was seen as a test case by other provinces on how to deal with online harassment. The law was also briefly mentioned positively in the now disgraced UN report on cyberviolence.
The court found the law violated charter protected rights and freedoms of Canadian citizens. On the topic of whether the law targeted material that is unrelated to cyberbullying, Justice Glen Mcdougall stated, “In this regard, the Cyber-Safety Act, and the definition of cyberbullying in particular, is a colossal failure.” One issue that was brought up was whether offending provisions of the law could be struck down, while allowing the rest of the law to stand. The court clearly stated, “The act must be struck down in its entirety.” Usually when Canadian courts find a law unconstitutional, they will delay the judgment for a year to give the government time to craft a new law that can address the issue without violating human rights. In this case however, the court offered the government of Nova Scotia no grace period, and decided that the law must be struck down immediately.
As soon as the law was passed it faced heavy criticism, primarily for its overly broad definition of cyberbullying which includes anything that might “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.” Yes, you read that right, damaging a person’s self-esteem was covered by the act.
Aside from the overly broad definition used by the act, it was also criticized over its protection orders. A person could go to a judge with the claim that they were being cyberbullied, and the judge could issue a protection order to prevent further bullying from occurring. In this situation the person being accused has no opportunity to defend themselves from the protection order. A person under a protection order could have their internet shut off and electronic devices seized, as well as being gagged from talking about their accuser.
The government had argued that protection orders were necessary in order to protect victims from retaliation, and that the law was designed to fill in a gap in existing laws. However McDougall says that even though the law has been struck down, victims won’t be without recourse. “The fact that the act was enacted to fill a ‘gap’ in the legislation does not mean that victims of cyberbullying will be completely without redress in the time it takes to enact new cyberbullying legislation,” he wrote. “They will have the usual — albeit imperfect — civil and criminal avenues available to them.”
Originally the law was passed in reaction to the attempted suicide of Rehtaeh Parsons, which occurred after she was allegedly sexually assaulted and then for months after a digital photo taken of it was passed around a lot. The story quickly caught wind around Canada getting heavy coverage, which continued through Parsons death in 2013 when she was taken off life support.
At this time, Nova Scotia Justice Minister Diana Whalen has not decided whether or not to appeal the decision.
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