PAUL BENNETT: Cyberbullying law may need tweaks to better serve teens

Tuesday, September 15th, 2015 @ 11:20AM


Nova Scotia’s prime line of defence against cyberbullying, the Cyber-safety Act, is now facing increasing scrutiny two years after its implementation. Inspired by the cyber attack on 17-year-old Rehtaeh Parsons, it’s popularly known as Rehtaeh’s law.

The law was, most agree, born in an atmosphere of crisis. The bill was passed in May 2013, just three weeks after Rehtaeh attempted suicide and died in hospital. From the beginning, Halifax privacy lawyer David Fraser and prominent members of Ontario’s Law Society expressed concerns about the haste of its preparation and the law’s “broad definition” of what constituted cyberbullying.

That may explain why much of the public debate over the law focuses on its sweeping breadth and potential to limit free expression under the Charter of Rights. Such discussion has tended to obscure the bigger issue of whether the law is actually serving its original purpose — to protect vulnerable teens like Rehtaeh in homes and schools across the province.

Since the act’s implementation on Sept. 30, 2013, the Department of Justice reports that the CyberSCAN unit has received 667 complaints and almost two out of three (248 or 63.4 per cent) have involved adults (18 years and older) rather than children and youth. During the first three months, 30 of 73 initial complaints (41 per cent) involved youth, but since then adults have increasingly looked to the law to fend off alleged cyberbullying.

The three best-known cyberbullying cases involve adults using a new legal tool at their disposal to defend themselves against online smears, offensive posts and persistent Internet harassment.

NDP MLA Lenore Zann turned to the Cyber-safety Act to defend herself against a teenager intent on dredging up old film photos. Halifax entrepreneur Anton Self succeeded in securing a protection order against a Debert businessman found to be spreading “defamatory information.” Most recently, social media guru Giles Crouch turned to the courts to seek redress under the act for damaging comments posted by a former business partner.

In each case, Rehtaeh’s law proved useful and perhaps helpful in resolving civil actions between adults with public reputations facing potential damage as a result of hostile or savagely critical online and social media posts and tweets. Few would criticize the victims for utilizing a new remedy at their disposal.

The Cyber-safety Act, it is important to remember, was not really designed to provide adults, particularly those in business and politics, with added protection. In April 2013, then-premier Darrell Dexter and former education minister Ramona Jennex presented it as a direct response to the online harassment and suicide of Parsons and two other teen victims.

Fraser has been very effective at commandeering public attention and focusing us on the flaws in the legislation. It is, in his words, “grotesquely over-broad” and “captures a whole lot of stuff” that may not even constitute “cyberbullying.”

He’s particularly concerned that “hurting people’s feelings” may be construed as cyberbullying in an age where everyone is sensitive to what American psychologists now term everyday “microaggressions.”

Nova Scotia’s acknowledged expert on bullying and cyberbullying, Dalhousie law professor Wayne MacKay, is more temperate in his assessment. He sees the critical need for such a law, even if it’s not perfect.

It’s doing its job, MacKay says, by confronting cyberbullying incidents and producing informal resolution of a fair number of the complaints. To date, some 235 complaints (34.7 per cent) have been resolved through such informal talks between the parties. About 100 complaints have also been investigated and ruled unfounded.

Two years on, it may be time to look at whether Rehtaeh’s law can be retooled to better serve youth who find themselves on the receiving end of cruel, hostile, unrelenting and humiliating online attacks. It would be critical to know, for example, whether or not teens now feel more comfortable coming forward to the authorities.

Separating youth and adults more in the act would definitely help. In that respect, MacKay is on record as recommending the establishment of different standards for adults as opposed to youth. He has also proposed giving accused cyberbullies a chance to defend themselves before a case actually reaches court.

Teens live much of their lives in an online world, so legal protections are definitely needed here in Nova Scotia and across North America.

Our province jumped in with a law where few other jurisdictions dared to tread. Instead of focusing so much on adult-to-adult reputational battles, as important as they are, let’s not lose sight of why we have the Cyber-safety Act on the books in the first place.

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