Cyber-Bullying Law Struck Down
Two years ago, the Nova Scotia government enacted the Cyber-safety Act [the “CSA”], making it the first Canadian province to address the widespread problem of cyber-bullying.
However, just two years after it was proclaimed in force, the CSA was struck down by the Nova Scotia Supreme Court on the basis that it violated the Canadian Charter of Rights and Freedoms. In particular, the court found that the CSA violated the Charter sections that protect the right to freedom of thought, belief, opinion and expression (section 2), and the right to life, liberty and security of the person (section 7).
That decision to strike down the CSA arose in the context of a case called Crouch v Snell, which involved two co-founders of a company. After their business relationship went sour, one of them (Mr. Crouch) aired passive-aggressive online attacks against the other (Mr. Snell).
Mr. Crouch was granted a Protection Order under the CSA, which ordered Mr. Snell not to communicate with him and to remove all social media postings that referred to Mr. Crouch either directly or indirectly.
Against this background, the court considered the provisions of the CSA, which was aimed at text or instant messaging, emails, and “any electronic communication through the use of technology” that is intended or reasonably ought to 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”.
After applying the well-established Charter principles, the court found that Mr. Crouch’s comments about Mr. Snell – while arguably distasteful or unpopular but otherwise non-violent in tone – were a protected form of expression. More generally, the court went on to find that the CSA itself purported to restricted protected forms of expression, and could not be demonstrably justified in a free and democratic society. The CSA was therefore ruled unconstitutional, and was accordingly struck down.
Despite being a case emanating from Nova Scotia, the decision to strike down the CSA is interesting from a more local standpoint as well, since in 2012 the Ontario government passed amendments to the provincial Education Act that include a “cyber-bullying” definition. Although that definition (and the legislation itself) applies only to cyber-bullying in the context of education, it will be interesting to see how Charter-protected freedoms are applied to such statutory attempts to impose restrictions on individual expressions that happen to be conveyed electronically. Time will tell how these legislative initiatives will hold up to such scrutiny.
Your thoughts on cyber-bullying laws?
For the full text of the legislation and the cited decision, see:
Cyber-safety Act, SNS 2013, c. 2
Crouch v. Snell, 2015 NSSC 340 (CanLII)
Education Act, R.S.O. 1990, c. E.2