A win for freedom of expression — however dark
Know the saying “right church, wrong pew”? Well, a decision on cyberbullying legislation in Nova Scotia is more like “right idea, wrong church, wrong pew, wrong faith, wrong country.”
That’s because the law, Nova Scotia’s Cyber-Safety Act, 2013, ran completely aground on the shoals of a case named Crouch vs. Snell, and promptly broke apart — as many in the legal community thought it would.
The act was brought in after the highly publicized case of Rehtaeh Parsons, a Nova Scotia teen who died after attempting suicide as a result of online bullying.
After Rehtaeh’s death, the public wanted action and the government delivered. Problem was, it was the kind of knee-jerk legislative solution that rarely ends well. There was little consultation, and it was so poorly con- ceived that, when a Nova Scotia Supreme Court judge held the law to be a violation of the Canadian Charter of Rights and Freedoms, Justice Glen G. McDougall didn’t even give the government a timeframe to fix the problem.
He just tossed the law out completely. (You can read his decision at http://bit.ly/1NL3mAO.)
It’s no surprise the Nova Scotia government struggled with the legislation. When freedom of expression was enshrined in the Constitution in 1982, cyberbullying didn’t exist, and freedom of expression cases were generally fought over issues of what teachers were offering in the classroom, or else the products of newspaper coverage or pamphleteers.
The tools didn’t exist to make your own views — however hateful or petty — instantly, constantly, widely and publicly known. The world changed. The Charter’s still the same: section 2 says “Everyone has the following fundamental freedoms: ... (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
The Internet is precisely an “other media of communication.”
Crouch vs. Snell is an interesting case to have fought the legislation over, though. It’s essentially a feud between two former business partners slanging each other over social media — the fight was primarily (although not always) one-way, and featured everything from public, though nebulous, personal attacks to anonymous email missives.
Giles Crouch felt attacked, and wanted his former business partner, Robert (Bruce) Snell, to stop.
Crouch got a protection order stopping the attacks from a justice of the peace, and that order was later confirmed by a judge of the Supreme Court. Interestingly Judge McDougall would have confirmed the protection order as well — if he had agreed the law wasn’t a violation of the Charter.
McDougall found that “Prevention of cyberbullying is a purpose that aims to restrict the content of expression by singling out particular meanings that are not to be conveyed, i.e. communication that is intended or ought reasonably 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. Therefore, the purpose of the Act is to control or restrict expression.”
McDougall also found that the law violated section 7 of the Charter, because it could put individuals in prison without due and fair process. The bottom line? Nasty little fights, even online, can stay, unless they stray into libel and defamation — then, there are other tools.
But if there are tools for stopping online bullying, governments haven’t found them yet.