Nova Scotia Court Strikes Down Province's 'Unconstitutional' Cyberbullying Law

from the back-to-the-legislative-drawing-board dept

Nova Scotia's horrible cyberbullying law -- with its broad definitions of bullying, lack of due process and a wholly ex parte accusation process -- emerged from the suicide of a teenage girl. Like many laws written in the wake of a tragedy, it was a hodgepodge of good intentions bundled in "do something" legislating. The resulting statute was terrible and destined for abuse.

A Canadian court first challenged the law in April 2015, nearly two years after it passed. The law, written with a bullied teenager in mind, was now being used by adults as a proxy for a defamation lawsuit, with the plaintiff likely figuring the broad language would result in a more favorable decision.

The court, however, wasn't interested in using a bad law for worse ends. It revoked an order issued under the statute and stated the element of actual malice needed to be factored into decisions under the legislation. This element freed otherwise uninvolved third parties (like ISPs) from being implicated simply because their services were used in the commission of cyberbullying and at least provided some form of defense against ex parte accusations.

Now, that same court has gone further, striking the Act down as unconstitutional. (via How Appealing)

Supreme Court Justice Glen McDougall released his decision on Friday, ruling the anti-cyberbullying law must be eliminated right away — unlike other court decisions that have struck down legislation but offered politicians a one-year grace period to rewrite the laws.

"The act must be struck down in its entirety. The attorney general has not persuaded me that a temporary suspension is warranted," McDougall wrote.

"To temporarily suspend the declaration of validity would be to condone further infringements of charter-protected rights and freedoms."
So, no one-year grace period to fix the law. Legislators will need to start from the ground up, a situation apparently uncommon when the courts find laws objectionable. This gives more credence to those who called the law out two years ago for its ability to turn everyone into a "cyberbully."

A stat included in one report, which was possibly supposed to indicate the law's worthiness, instead seems to imply the anti-cyberbullying legislation was overkill.
That means the CyberSCAN unit at the provincial Department of Justice — created to investigate allegations of cyberbullying under the law — will stop working on 35 cases and shift its focus to public education and awareness.

A department spokesperson told CBC News that in the last two years, they worked on 800 complaints, with many of the cases involving harassing photos or bullying comments that were removed or stopped without the involvement of police.
The cases that have ended up in court seem to be the result of plaintiffs looking to avoid the more rigorous demands of defamation lawsuits by using ex parte accusations and the resulting court orders to block the accused from making further derogatory statements.

The only other statement issued by the government in response to the court's decision comes from the Justice Department, which unhelpfully and redundantly notes the bad law was motivated by only the purest of intents.
The Justice Department issued a statement saying an independent review of the Parsons’ case by a former Ontario chief prosecutor found the law was a “novel and directly responsive solution” to address cyberbullying.

“The intent of the legislation is good, and had all-party support when it was passed,” it added.
Well, maybe both parties can put together something better for version 2.0, now that there's time, distance and hindsight available to help guide them towards better legislation.

Filed Under: canada, cyberbullying, free speech, nova scotia, offense

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  1. icon
    Mason Wheeler (profile), 17 Dec 2015 @ 10:10am

    As I understand it, ex parte means that only one party to a dispute needs to be present. So what's wrong with an "ex parte accusation"? If I have a problem with Bob violating my rights, I don't need to haul Bob into court just to accuse him; that would, in fact, be completely backwards.

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