A Nova Scotia judge has thrown out the country's toughest law on cyberbullying, passed unanimously by provincial politicians a month after the death of Rehtaeh Parsons, a teenager subject to online harassment featuring a photograph of her being sexually assaulted.
In a case that involved the online harassment of one adult by another, Justice Glen McDougall of the N.S. Supreme Court ruled that the law violates the free-speech clause of the Canadian Charter of Rights and Freedoms, and is also fundamentally unfair in that the government can obtain a court order limiting someone's free speech without that person being present. (Of the 820 investigations under the cyberbullying law, 378 involved adults against adults, government statistics show. There were just 243 cases of youth against youth.)
Justice McDougall refused to suspend his ruling to give the provincial Liberal government time to rewrite the law, saying that its unfairness must not be allowed to continue. The law, passed by the previous New Democrat government in May, 2013, created a cyberbullying investigative unit with the power to seek court orders to restrict the use of or even confiscate computers and other devices. It defined cyberbullying as any electronic communication that could reasonably be expected to intimidate or hurt the self-esteem of another person.
The case involved two business partners in a company that helped the corporations and governments understand and work with social media. Giles Crouch left the partnership in late 2013, and the business, Mediabadger, then went downhill and ultimately closed. Mr. Crouch said a former partner, Robert Snell, began a smear campaign against him on social media, intended to intimidate him and ruin his reputation. There was a stream of tweets, posts on other social-media sites and anonymous e-mails sent to Mr. Crouch and to his new employer. These posts did not mention Mr. Crouch by name.
In one example, as Mr. Crouch was set to discuss cyber security on CTV, Mr. Snell posted: "That is brilliant, almost like asking a plumber for medical advice." In another, after the two men crossed paths in downtown Halifax, Mr. Snell tweeted: "You see someone and want to clothesline them. … That is normal right?"
Mr. Crouch obtained a protection order from a justice of the peace that barred Mr. Snell from engaging in cyberbullying of Mr. Crouch; it also ordered him to remove from social media any comments he had made, direct or indirect, about his former partner. But Mr. Crouch was not always honest with the justice of the peace during the hearing, at which Mr. Snell was not present, Justice McDougall said.
N.S. Justice Minister Diana Whalen expressed disappointment with the decision, and said the government has not yet decided whether to appeal the ruling or write a new law.
"We feel strongly there is a need for us to recognize the changing world of technology and the world our young people are part of. We want to protect them," she said in an interview with The Globe and Mail. "There was a gap, and remains a gap for the whole country. We definitely recognize it here in the wake of a tragedy. It was clear that police and prosecutors didn't have the laws in place to guide them in laying charges or protecting somebody."
David Fraser, a Halifax lawyer who represented Mr. Snell, said that in the country's two best-known instances where cyberbullying led to suicides – that of the 17-year-old Ms. Parsons in April, 2013, and Amanda Todd, 15, of Port Coquitlam, B.C., in 2012 – police failed to pursue the matters seriously, though criminal acts such as extortion, sexual assault and child pornography were involved. He said he hopes the government takes its time in drafting "a replacement statute that properly takes into account the real problem that is cyberbullying and do it in a way that doesn't have massive collateral damage to charter-protected rights."
Wayne MacKay, a Dalhousie law professor who chaired a provincial task force on cyberbullying before Ms. Parson's death, said in an interview that he is not surprised by the ruling, but is disappointed that it takes effect immediately, leaving a gap in protection.
"From a victim's point of view, I think there's a real concern that once again cyberbullying is not taken as seriously as it should be, and that the clock has been set back," he said. "This is seen as part of the legacy of Rehtaeh Parsons, and now with one decision it's wiped out."