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Nova Scotia Cyber Safety Act sparks debate

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HALIFAX – An overwhelming majority of complaints filed under Nova Scotia’s anti-cyberbullying law have been resolved out of court, proof that it is working despite lingering criticism, supporters of the legislation say.

Two years after it was passed in April 2013, the bill still faces criticism from legal experts who say it threatens freedom of expression.

The legislation is the first of its kind in Canada.

Two challenges aimed at striking down the controversial law are currently before the courts, and in a separate case an order under the Cyber Safety Act was overturned by the Nova Scotia Supreme Court on grounds it violated charter rights.

But a member of Nova Scotia’s CyberScan unit, which was established under the act to crack down on cyberbullying, said there is a side of the law the public doesn’t hear about as much.

Of the 559 complaints of cyberbullying filed with CyberScan, only two have proceeded to court, with the rest resolved through informal negotiations, said Dana Bowden, one of the five investigators with the unit.

“We’ve had a great deal of success,” Bowden said.

Bowden said the unit’s goal is to educate and resolve rather than be punitive.

“I think once you’re able to speak with individuals and they have an understanding of the fact that there is a law in Nova Scotia around cyberbullying, and how that law works … people seem to be getting that message.”

Under the act, people who say they have been victims of cyberbullying can also bypass the CyberScan unit and apply to a justice of the peace for a protection order. Fewer than 10 protection orders have been issued since the law’s creation in 2013.

One of those was revoked in March, in the case of Debert businessman Jonathan Baha’i, who was accused of posting defamatory information online about his former landlord Anton Self. A judge originally issued a one-year protection order, which included a ban on Baha’i communicating with or about Self, in November 2014.

Lawyer and privacy expert David Fraser, an outspoken critic of the act, said such orders violate the right to free speech.

“Anything that limits what you can or do say on its face infringes section 2B of the charter,” said Fraser, who represents the complainants in the two current court challenges.

Fraser said the legislation, written less than three weeks after the death of Rehtaeh Parsons, was done so in haste.

“My concern with the legislation is that it’s so grotesquely over-broad. It captures a whole lot of stuff that you or I would not even consider to be cyberbullying.”

Judge Gerald Moir made similar comments when he revoked the protection order on Baha’i in the Supreme Court.

“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,” Moir said in his ruling.

“Each is a cyberbully according to the literal meaning of the definitions (of the law), no matter the good intentions of the neighbour, (or) the just demand of the lawyer.”

Fraser said it irks him that the judge had to go to such lengths to interpret the legislation.

“The fact that a judge has to essentially rewrite a key part of the law in order to make it make sense, in the context of what it’s intended to do — that tells me that the legislature did not do a good enough job in being clear about what it was trying to do,” he said.

But Wayne MacKay, a professor in human rights law at Dalhousie University, doesn’t see the judge’s comments as condemnations of the act.

“Some would certainly argue that the definition of cyberbullying itself may be too broad,” said MacKay, who chaired the cyberbullying task force ordered by the government after Parsons died.

“But another way, and that’s what happened in this case, is to say, ‘Well, we’ll take it on a case-by-case basis.’”

There are a couple of things MacKay said he would change about the act: having different standards for adults as opposed to youth and giving accused cyberbullies the chance to defend themselves before a case reaches court.

But overall, MacKay thinks the legislation is doing its job.

“I think the act is a necessary and positive addition to giving victims some remedies they didn’t have before.”