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Canadian cyberbullying laws – Where are they now?

cyber-bullying-online-defamationMost Canadians would recall the well-publicized story of Rehteah Parsons, the teenager who committed suicide in 2013 after being a victim of alleged sexual assaults and cyberbullying. Following Ms. Parsons’ tragic death, the Nova Scotia government passed the Cyber-Safety Act, which created the criminal offence of cyberbullying. The Federal government followed suit by passing Bill C-13 (sometimes referred to as the Cyberbullying Law) which (amongst other things) amended the Criminal Code to create cyberbullying-like offences.

In the recent decision of the Nova Scotia Supreme Court of Crouch v Snell, the Court struck the Cyber-Safety Act, finding it to be unconstitutional. Specifically, the Court held that the Cyber-Safety Act violated section 2(b) (freedom of expression) and section 7 (the guarantee of life, liberty and security of the person) of the Charter of Rights and Freedoms.

What impact does the Crouch v Snell decision have on the Federal cyberbullying laws?

Crouch v Snell only considered the constitutionality of the Nova Scotia Cyber-Safety Act. Thus, it does not have any impact on the Federal cyberbullying laws, which continue to remain in effect. However, Crouch v Snell is also the first decision by a Canadian court to find a cyberbullying offence to be unconstitutional. Thus, at the very least, Crouch v Snell provides an impetus for someone to challenge the constitutionality of the Federal cyberbullying offences in court.

One of the chief concerns that the court in Crouch v Snell had with the Nova Scotia law was the overbroad definition of “cyberbullying”. The Cyber-Safety Act defined “cyberbullying” 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”.

The court held that this definition was so broad as to include almost any form of communication that may reasonably result in fear, humiliation, harm to a person’s emotional well-bring etc. Quoting an earlier decision, the judge stated:

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”.

The Federal cyberbullying laws do not define “cyberbullying”, nor do they include overbroad wording similar to the one found in the Nova Scotia act. Rather, Bill C-13 creates specific offences involving online behaviour, including the dissemination of pornographic images without the consent of the person appearing in those images. It has also extended already existing offences of criminal harassment and intimidation to acts committed over the internet. Thus, at least in regards to the issue of the breadth of the legislation, Crouch v Snell does not apply to the Federal laws.

The Nova Scotia’s government attempt to redress the problem of cyberbullying through the passing of the Cyber-Safety Act was a noble yet doomed undertaking. Hopefully, the Federal government’s attempt at combatting this problem does not meet the same bitter end.

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security.
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