First Decision Under NS Cyber-safety Act
February 12, 2014
By David Fraser, at McInnes Cooper
On February 11, 2014 the Nova Scotia Supreme Court made its first decision applying the NS Cyber-safety Act – and issued a prevention order.
According to media reports, Andrea Paul, the Chief of the Pictou Landing First Nation, reported that Christopher Prosper – now living in Ontario – sent her numerous threatening messages over Facebook. She blocked him; he then sent the threatening messages to Paul’s children. The Court issued a “prevention order” under the Act requiring Prosper not to have any contact with Paul or her family or to engage in any actions that are “cyberbullying” under the Act, and to remove any of the offending posts that remain online.
The Act – the first of its kind in Canada – came fully into effect in September 2013:
- “Quasi-Criminal”. The Act doesn’t make cyber-bullying criminal conduct; only the Federal Government can do that under the Criminal Code of Canada. The Act does, however, impose penalties for contravening Protection Orders and Prevention Orders similar to a criminal offence, but with more simplified court procedures.
- Civil Liability. The Act also makes “cyberbullying” wrongful conduct, and allows a person to sue another one if it has suffered damage because of the cyberbullying – and makes a parent jointly and severally liable for a minor found liable under the Act unless the parent exercised “reasonable supervision”. No one has yet filed a claim for civil liability under the Act in court.
- Prevention v. Protection Order. This is the first time there has been a “prevention order” – an order only a court can make – under the Act. The head of the Cyber-Scan Unit (the body the Province created to administer the Act) says there have previously been two “protection orders” – an order a Justice of the Peace can make – under the Act.
- Enforcement. Provincial legislation like the Act only applies in the Province. The person the Court issued the order against lives in Ontario – which doesn’t have a similar law – raising the question whether the order can be enforced outside the Province.
- Charter Challenge. It’s easy to see how the Act runs head-on into a person’s right to freedom of expression under the Canadian Charter of Rights and Freedoms. The Act’s definition of cyberbullying is very broad – it includes all electronic communications that “ought reasonably be expected to cause … or other damage or harm to another person’s … self-esteem or reputation”. To survive a challenge that the Act violates the Charter, the party defending it must persuade a court that it is appropriately tailored and not overbroad. No one has challenged the Act on that basis yet – but most privacy lawyers agree it’s likely to happen.
The NS Supreme Court hasn’t yet issued a written copy of its decision. If it does – which we expect – we will publish it.
Click here for more from McInnes Cooper’s David Fraser on this decision.
Click here to read the NS Cyber-safety Act.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Law Team to discuss this topic or any other legal issue.
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