Laudable Aim, Questionable Law

By | August 22, 2013 at 12:43 pm | 2 comments | Blog | Tags: , , ,

Following the suicide of Halifax teenager Rehtaeh Parsons in April 2013 and the child pornography charges brought against two suspects who allegedly assaulted her in November 2011, cyber-bullying has become the focus of a national debate in Canada. Nova Scotia’s Cyber-Safety Act was drafted with the laudable goal of preventing similar tragedies, but it raises difficult questions about the extent to which free expression can be monitored by well-intentioned legislators. Marq de Villiers considers the possible implications of  of the new law and the ways it could be used to undermine freedom of expression.

Marq de Villiers

Marq de Villiers

Nova Scotia’s problematic Cyber-Safety Act

Good legislation seldom comes in the heat of emotion, in the high passion surrounding some public, and often tragic, event. PEN’s National Affairs Committee believes that Nova Scotia’s new cyber-bullying law (the Cyber-Safety Act) is a case in point. Introduced in reaction to the suicide of a teenager, it is well-meaning, comes with the best of intentions, is politically and publicly popular, but is nevertheless over-reaching, and carries with it a worrying threat to free expression.

Nova Scotia’s Cyber-Safety Act is well-meaning and politically and publicly popular, but it is also over-reaching and a threat to free expression

The legislation is a reaction to the distressing case of Rehtaeh Parsons, a 17-year-old who hanged herself after a long battle with suicidal thoughts, and after more than two years of harassment on social media, during which time her schoolmates passed around a sexually explicit photograph of her, taken during a drunken teenage party. The photo circulated around the town and her school, apparently without a second thought or any sign of remorse, in multiple acts of social cruelty, unmonitored by any adult. Her schoolmates called her a slut, her friends snubbed her, and boys routinely demanded sex from her. Her schools, more than one of them by the end, inexplicably did nothing. She was, as her father so poignantly put it, disappointed to death.

The government of Darrell Dexter was therefore reacting to a wave of public revulsion in introducing this law. The entirely laudable aim? “To ensure that all Nova Scotians have a place to turn when they experience, or are aware of, cyber-bullying.” The law professor who headed the task force that led to the legislation believes the new law could have made a difference in the Parsons case, and has subsequently urged other provinces to follow Nova Scotia’s lead.

Read in one way, the Act is innocuous enough—it is just putting a stop to egregious cruelty. Read in a more critical way, problems emerge.

One issue is the very concept of bullying, which is slippery to define. The Act itself has difficulty in this regard, declaring that cyber-bullying is bullying if the victim, or alleged victim, feels aggrieved and diminished—that is, if you complain, the presumption is that you are being bullied. True, the court or its agents must believe there has to be some kind of intent, or expectation of harm, on the part of the perpetrator, but this remains a subjective definition: you are being bullied if you feel you are being bullied.

Here’s the Act’s own wording:

The very concept of bullying is slippery to define; the Act uses a subjective definition: you are being bullied if you feel you are being bullied

“Cyber-bullying is … any electronic communication … 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.”

Note that it doesn’t say it does cause “fear, intimidation, humiliation, distress or other damage or harm,”only that it might be expected or was intended to do so. So it is possible to extract from the definition that a prosecutable offence is being committed if someone writes anything that could cause any distress to a person’s self-esteem, or even to that person’s feelings (defined in the Act as “emotional well-being”), particularly if such writing is repeated or retransmitted, which could speak to intent. The Act also encourages taking into account the “vulnerabilities” of the complainant. These, too, are terms slippery of definition.

The law makes no distinction between acts that are intended to cause harm (in any case difficult of proof, as courts have found in libel cases) and acts that “ought reasonably be expected” to cause harm (also slippery of definition–should be expected by whom? And by what standard?)

It has been suggested that under this law, say, a stand-up comedian whose work is ridiculed online, could claim bullying and get his tormentors shut down if his self-esteem felt bruised. Or that a series of savage reviews of a play could harm the feelings of the playwright, and if that were intended, or harm could have been “expected”, the playwright could then get his critics silenced. Such prosecutions are, in fact, unlikely and certainly unlikely to succeed—there is an implied consent under such circumstances. But, as a Toronto Star editorial put it, “the Star gets letters to the editor every day whose very point is to cause humiliation and distress to people with whom the writers disagree, if not to undermine their self-esteem and reputation. Are all of these people cyber-bullies?” It is even possible (though remotely) that, as a writer for the National Post put it, you could be brought up for bullying if you craft a series of emails dumping an obnoxious boyfriend, if said beau felt unfairly put upon (romantic rejection is seldom kind, after all, and here’s a case where harm is definitely being expected). Being mean is now being criminalized.

Unlike existing laws of libel and slander, the Act makes no allowances for the public interest, satire, journalism or criticism of public officials

 Are these outcomes likely? No. On the plus side, the courts (if these complaints get that far) are generally careful to consider the nature of an alleged perpetrator’s conduct, and whether harmful intent or malice was intended. But there is nothing in the Act to preclude them.

Anyone can complain. The net is wide. “[The enforcement arm] will [my italics] investigate all complaints of cyber-bullying, whether the victim is a minor or an adult. Any Nova Scotian can make a complaint: students, parents, teachers, principals, or other members of the public.” Well-meaning people, or scolds and gossips. Anyone.

There are no allowances in the law for any of the following, all of which are commonplace hedges in the laws of libel and slander:

  • no allowance is made for cases in which there is a real public interest in making or keeping the information public;
  • no allowance is made for satire (Frank magazine, for instance, routinely humiliates and causes distress to prominent individuals, to the great delight of its readers);
  • no distinction is made between criticism that is aimed at someone as a private individual and at someone in an official capacity;
  • no allowance is made for journalists.

It is true that the review process in the Act (of which more later: this is one of the Act’s better features) allows a panel to make these distinctions. Such allowances are not in the statute itself, though, and we are obliged to rely on the goodwill of an appointed panel, whose members may be neither lawyers nor police officers, to grant such allowances, at their discretion.

There are already laws on the books against stalking, criminal harassment, libel, defamation, sexual assault, and making and distributing child pornography. (Indeed, in the Parsons case arrests have been made using existing child pornography laws.) All of these are closely defined. Bullying is not.

The focus of the new law is an after-the-fact one, it pays no attention to teaching communities compassion and respectful behavior, although such programs exist, and are apparently effective

It is true that no current law seems to cover distributing intimate photos of a person without that person’s consent. But closing that loophole does not require discarding long-protected safeguards for free expression, which this Act is in danger of doing.

Moreover, the focus of the new law is an after-the-fact one: it seeks to punish people after the harm is done, or at best to stop it while it is still ongoing. Thus, no attention is paid to providing schools and communities programs to teach compassion and to require more respectful behavior, although such programs exist, and are apparently effective.

Another troubling aspect of the law is that accusations of bullying can be initiated without the knowledge or participation of the alleged perpetrator.

If you are critical of someone online (perhaps excessively, perhaps not) that person can initiate an action merely if he or she feels aggrieved. The wounded party could visit the Act’s enforcement arm, or even just write a letter if travel was a burden, and ask for a “protection order.” Since “intent” can easily be assumed, and since the criteria include wounded feelings, the Act’s enforcement mechanism would find it hard not to proceed. You will not be consulted, and have no right to be represented.

Granted, if such an order is issued, you must be notified before it can be enforced. But even then, you have no right to a defence. If you don’t cooperate to its liking, the enforcement arm under the Act may seize your computer and telephone, cut you off the Internet, gag you and prohibit you from mentioning or naming your accuser (if you even know who it is).

There is more. If your child is found to be a cyber-bully, you are by definition a cyber-bully too, unless you can prove that you really tried to put a stop to it. If you can’t prove that, you are liable to fines and jail time. If it is found that you didn’t try hard enough, you could be subjected to “general, special, aggravated and punitive damages.”

Moreover, school principals now become somewhat responsible for what their pupils do online, even if they do it after hours and off school property. Principals can, and now will surely be obliged to, suspend any pupil who disses another on Facebook.

If your child is found to be a cyber-bully, you are by definition a cyber-bully too, and you could be subjected to ‘general, special, aggravated and punitive damages’

There are positive aspects to the new law. As an enforcement mechanism the law sets up a so-called Cyber SCAN unit, whose primary job, in a rare fit of moderation, is to attempt to solve bullying issues through discussion or mediation. Informal solutions are to be preferred, through discussions with the complainant, alleged perpetrator, school officials, family and others. This is all good. As the first Director of the unit put it, “our primary goal is to stop the cyber-bullying. We hope most complaints will be resolved simply by making the person doing the cyber-bullying aware of the harm they are causing and the possible consequences.” Again good—though note the presumption that bullying is in fact going on. If persuasion doesn’t work, the unit can issue a prevention order, and only after that get into the messy business of confiscating equipment, copying internet browsing histories, and ransacking houses. Finally, if criminal charges appear to be warranted, the unit will refer the case to police.

This is all worthy. But investigations will be only as good as the investigators, and their quality remains to be seen. The unit could, allowably under the Act, lean several ways. It could act as a crisis-resolution panel (good) or spy on teenagers (not so good).

The specified appointment criteria sound positive. Roger Merrick, the director, is a former police officer who has run, among other things, the provincial firearms safety program. He is neither a lawyer, nor a trained  mediator, however. The other investigators, not yet hired at time of writing, “may have law enforcement, legal, education, or social work backgrounds,” according to the provincial government. “They must [my italics] also have experience conducting criminal, compliance-based or code of conduct investigations, as well as training or experience in mediation or conflict resolution.”

PEN’s mandate is to protect free expression in all its forms. The Nova Scotia Act was rushed through the Legislature with all-party support and virtually no debate or critical scrutiny. It may yet prove effective and its enforcement protective of free speech—this remains to be seen. But there are worrying signals, and PEN urges other provinces that might be considering such a law to move cautiously and to be explicit in declaring that free expression will not be compromised.

Marq de Villiers is a member of PEN Canada’s National Affairs Committee and a veteran journalist and author. His most recent book is Our Way Out: First Principles for a Post-Apocalyptic World, which attempts to deal with the economy, politics and the environment as aspects of a single meta-crisis. 

Photo credit: The Toronto Star



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