Nova Scotia's New Cyberbullying Law A Big Step Forward
I was going to write an article summarizing Nova Scotia’s proposed new Cyber-Safety Act. Legislation that the government has introduced to battle cyberbullying. However, my colleague David Fraser has done an excellent job noting the highlights of the Act on his Canadian Privacy Law Blog so I would commend his article to anyone interested in this issue. You can read it here.
Almost a year ago I wrote an article for the Atlantic Canada legal Examiner: More Needs To be Done in Nova Scotia to Protect Children Against Cyberbullying. The province has now tabled the new legislation and it does do more to help protect our children so I thought I would share my views of the proposed legislation.
One of the things I think is important about the proposed legislation, and something I support, is that the Cyber-Safety Act places some responsibility on the parents of children who are engaged in cyberbullying to monitor their children’s online activities and take steps to prevent cyberbullying.
Specifically, the legislation says that where a parent knows their child is engaged in online activity that may cause “...fear, intimidation, humiliation, distress, or other damage or harm” and fails to take the steps to prevent the activity, the parent is deemed to be engaged in cyberbullying.
Courts have power to address Cyber-Bullying
In the media debate about cyber-bullying, some commentators have suggested that current legislation isn't well suited to dealing with the issues created by social media while others have asserted that simply enforcing existing criminal laws should be sufficient.
The proposed legislation provides the Courts with authority to issue protection orders prohibiting the cyberbully from engaging in certain activities and communicating with the victim, as well as a broad discretionary provision that allows a judge to include:
“...any other provision that the justice considers necessary or advisable for the protection of the subject”.
This is a significant step forward.
However, if the victim of cyberbullying is a minor the victim’s parents must apply for the protection order. This, of course, raises a question of what happens if the parent of the victim does not want to get involved or is intimidated by the cyberbully or the cyberbully’s parents?
We will have to wait and see how this plays out in the future.
Victims have recourse through the courts
Another feature in the proposed legislation that is interesting is the creation of a new tort (civil claim) of cyberbullying.
Victims of cyberbullying now have the right to sue a cyberbully for damages for among other things, pain and suffering, aggravated damages and punitive damages caused by the cyberbully’s conduct.
If the cyberbully is a minor, this section also makes the minor’s parents jointly responsible for the bully’s actions.
In the past, it has typically been pointless to file a lawsuit against a teenage bully since most children do not have assets to respond to a lawsuit. The cost and expenses would far exceed the potential for any actual financial recovery.
However, by making the parents jointly responsible for the teenage bully’s actions the victim now has access to the parents’ assets and, potentially, the parents’ insurance coverage.
It will be interesting to see how fast insurance companies respond by specifically excluding coverage for bullying claims, like they did when homeowners insurance policies were forced to pay out claims for child sexual abuse.
Schools have more authority
Finally, the proposed legislation includes changes to the Education Act which will empower school Principals to take action over activities that take place outside of school that are “disruptive” to the learning climate of the school.
In other words, if a child is being bullied outside the school or during after-school hours, and it impacts on the victim’s performance in the school, Principals now potentially have a means of taking steps to address the conduct.
This is an important step forward because for the most part the schools have been unable (or unwilling?) to address conduct that takes place during after-school hours.
One must keep in mind that the section empowering the Principals to take action is permissive (“may take appropriate action”). So how effective this section of the proposed legislation will be depends entirely on the willingness of the Principal of each particular school to become engaged and to address the bullying conduct and its consequences.
Nova Scotia leading the way in protecting victims of bullying
Last year I was critical of Nova Scotia's lack luster response to the Cyber-bullying Taskforce. i can say now that I am impressed with the new legislation. there is more that i would have like to see in the legislation, but I think it is fair to say that with this proposed legislation, Nova Scotia has become a pioneer in this area of the law.
It is tragic that it has taken the lives of more than one Nova Scotian teenager to illustrate the need for the legislation.