The decision to strike down a Nova Scotia cyberbullying law last month has highlighted the difficulties governments face when crafting legislation against cyber harassment. Whether it be revenge porn or "ugliest girls" polls on Facebook, harassment online is a real, tangible thing—yet it's something that we, as a country, have been unable to effectively tackle.
With the deaths of Amanda Todd and Rehtaeh Parsons, talks about cyberbullying and the impact it has on its victims only started to come to a head in the early 2010s. The eventual result of those discussions was Bill C13—federal legislation that was created in Canada to criminalize the sharing of intimate images by unauthorized parties, thus putting teenagers and disgruntled exes passing around other peoples' nudes in the legal line of fire.
Today's verdict in Canada's first so-called Twitter harassment case shows that criminal harassment, when tried on a digital basis, is hard to prosecute. The two women in the case said they felt threatened by a man who had consistently made disparaging remarks about them on Twitter. The judge agreed that the women were harassed, but in his decision argued that they did not have to fear for their safety.
Take what happened in December of last year: the Cyber Safety Act (CSA) of Nova Scotia was struck down by a Supreme Court of Nova Scotia justice after a challenge from a privacy lawyer raised red flags that the law was not working as it was intended to.
Concerned about a dispute between two men (in which one of them tried to use the CSA to claim online defamation against the other), the judge agreed that the CSA went too far in its definition of what exactly cyberbullying meant and infringed upon the right to free speech guaranteed by the Charter.
That a cyberbullying law goes too far is a criticism that comes up constantly. Even in the case of Bill C-13, the law faced backlash over what some saw as loose and hard-to-define variables to differentiate digital harassment from criminal harassment. This can present problems for judges when trying to uphold the law against people who challenge that the cyberbullying law is really just a clever way of getting around free speech protections, according to experts.
Roger Merrick, the director of Public Safety Investigations at the Nova Scotia Department of Justice, was directly involved with helping to run CyberSCAN—the investigative unit that was created to look into all cases that fell under the CSA's guidelines. He told VICE that one of the toughest things to do when drafting cyberbullying law is finding the correct way to word it, so that there is a clear difference between criminal harassment and cyberbullying.
"If you look at criminal harassment laws, most cases there has to be an element where people fear for their individual safety or that another person may harm them," he said.
"With cyberbullying, much of it is damaging to the person's reputation, where it's an attack upon an individual. Much of the cases we investigated were really humiliating, demeaning type of attacks on individuals."
In terms of the CSA, Merrick is disappointed that it was struck down. While in agreement that the Nova Scotia law may have gone too far, he says the issue could have been resolved if the two men involved in the challenge would have come to CyberSCAN before going to the courts. Merrick added that by going directly to the justice system, they circumvented the very agency that was put in place to make the decision whether cases deserve to fall under the law. According to him, victims are going to be left high and dry.
"I'm disappointed that people who are victims right now don't have the option of going to the police and that this program is not an option for them. For us, we're disappointed that we don't have the ability to try and protect people like we had over the past two or so years."
As of right now, there are no laws to protect people against things that fall outside of criminal harassment. Merrick notes that things like Bill C-13 or existing laws against child pornography are great, but they don't stop things like bullying on social media or the harassment we saw against individuals during Gamergate. Unless the police can prove there is a reasonable threat to a person's safety, criminal harassment won't stick as a charge.
Some provinces have taken steps in the right direction. Manitoba put a law into effect this week that allows victims of revenge porn to sue perpetrators in civil court for compensation, and, if they so wish, press for criminal charges. This doesn't exist in any other province, and Merrick says that relying on federal law like Bill C-13 is often used as an excuse so provinces don't have to take individual action.
"I think it's… I don't want to use the word cop out, but to say it's a federal responsibility is disingenuous," he said.
"It's easy to say that we should leave it all to the federal government, and Nova Scotia was the first province to try and deal with cyberbullying. We saw the damaging effects of the Rehtaeh Parsons cases and nationally with Amanda Todd, so the province stepped up. We brought the law in to try and respond to those cases."
Wayne Mackay, a law professor at Dalhousie University in Nova Scotia and a member of the committee that helped to draft the CSA, says that lawmakers need to clearly lay out what the next legislation is going to look like and how it's going to going to define cyberbullying if they want to make a concrete law that can "actually protect victims."
"Clearly, we need this kind of legislation—there's more cases all the time. I think it's possible to balance that need with free speech by clearly defining what we define as cyberbullying so that it is broad enough to cover the cases that need protection, but not so broad that it limits free speech. The other thing, as a way to get there, is better consultation. The CSA was drafted very quickly with very little consultation, while I hope that, when they do draft the next act, they consult a number of lawyers and public officials."
Merrick, however, explains that he's concerned many victims will continue to fall through the cracks while the issue goes unaddressed, and notes that the need for new legislation is urgent. When asked by VICE if the current government sees cyberbullying as an issue on its immediate radar, the federal Department of Justice pointed to Bill C-13 and educational campaigns against cyberbullying as steps made in that direction. The department gave no comment on future legislation.
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