Suppose a teenager bullies another teen online, and the victim goes on to commit suicide. In Nova Scotia, the parents of the bully could be sued for damages under the Cyber-safety Act, passed this summer in a hasty response to the cyberbullying and suicide of 17-year-old Rehtaeh Parsons of Cole Harbour. It's liability without being directly at fault – except by being a parent.
From here on in, parents could be deemed financially and by extension morally responsible for the suicide of a teenager they may never have met or been aware of.
Nova Scotia is not the only jurisdiction willing to hold parents accountable for the wrongdoing of their children. British Columbia, Manitoba and Ontario all have laws requiring parents to pay damages in cases of vandalism by their children. Those laws are based only partly on the idea that the parents have deeper pockets than their children. More important is the 20th-century notion that delinquent parents raise delinquent children; deterrence depends on punishing the parents.
Or as the American Civil Liberties Union once said, it's the crime of having a child who commits a crime. That notion has wide currency in the United States. "There's virtually no defence – if you're the parent, you're liable [in civil court]," Eve Brank, a psychology and law professor at the University of Nebraska, says.
Some jurisdictions have been ridiculously punitive. Dermott, Ark., passed laws in the 1980s threatening parents with two days in an open-air stockade, and their pictures in the newspaper above the caption "Irresponsible Parent," if their children violated an 11 p.m. curfew. A 1985 Wisconsin law imposed fines of up to $10,000 on the parents and grandparents of unmarried minors who give birth. The purpose was to prevent teen pregnancy. (Guess what? It didn't work.) In Michigan in 2005, when a teenager set fires at a high school, the state made the parents criminally responsible, and fined them $700,000 – without evidence they were at fault.
The Nova Scotia cyberbullying law is the only Canadian example that specifically requires parents to oversee online use or face liability in civil court. Parents are deemed guilty unless they can show that they exercised "reasonable supervision." But what is reasonable supervision in the context of children's online behaviour? The law doesn't say.
So where should parents turn to find out? Typically unhelpful is the Canadian Senate report Cyberbullying Hurts, subtitled A Guide for Parents and published December, 2012. It doesn't say much in a direct way about parents' responsibility to prevent their children from being bullies. "If your home is an environment of respect for others, of self-respect, of tolerance and open communication, it's more likely that your child will have the tools to not be caught up in cyberbullying — either as victims, as bullies or as bystanders who watch it happen and do nothing about it." Good stuff – but it has nothing to do with supervising computer use.
Even experts like Wayne MacKay, an esteemed Dalhousie University law professor who headed the province's Cyberbullying Task Force, aren't sure what parents should do, apart from parents offering a few words about good online citizenship.
There is some guidance – online – about what to do. Have the family computer in an open area. Ask your child how to use a social-networking site they use, and then peek at their page. Use an Internet filter to monitor what sites they use, and keep out certain ones.
But let's face it, none of these would do anything to stop online bullying – any more than a parent hanging out at the schoolyard would stop mean comments from being made.
For one thing, most young people either have laptops, or hand-held devices, on which they can do their online bullying out of sight. For another, even a computer in open sight can't be truly monitored unless one acts as a constant sentry or demands complete access to one's child's private communications.
Are parents in Nova Scotia supposed to spy on their children's computer use?
It seems to us that would be bad parenting practice. Parents should not be in the business of guarding children against bad tendencies by hovering and nosing around computers, any more than they should listen in on phone calls. Children need and have a right to some privacy, within parameters. Parents in the Internet bullying age still need to show respect for their children.
Not that such hovering is practical, anyway. Should parents read the 100 or 200 communications their child might make in a night? (Heaven forbid they should have three or four children.) Parents have no way of knowing all the many social-media sites on which their children might spend some time. (Are they now expected to know?)
Many parents, perhaps most, are not nearly as computer-savvy as their offspring. Do they now have a legal responsibility in Nova Scotia to learn the ins and outs of Facebook, Twitter and 12 or 15 other sites?
Manitoba's experience with "reasonable supervision" may offer guidance. "Judges are really loath to find the parent responsible," says defence lawyer Josh Weinstein of Winnipeg, except where the parents knew their child was "a bull in a china shop and let them run loose." For Nova Scotia, a similar interpretation would mean lawsuits would succeed only where the parents knew their child had a history of online bullying and did nothing about it. But the law as written is not nearly so narrow.
Under the common law, parents could be held responsible only for negligence – leaving a gun or car where a child might do something terrible with it. Digital communication is incredibly powerful, and parents should try to help their children avoid being bullies – or bullied. But the state has no place trying to punish parents for doing so imperfectly.