Free Expression Has Trounced a Law Against Online Harassment in Canada

On Friday, a Supreme Court of Nova Scotia judge struck down a law that allowed people who believed they were being "cyberbullied" to apply for legal protections. But in striking down the law, in favor of constitutional rights, the judge also returned the province to its previous void of legal protections for people experiencing online abuse.

The Cyber-safety Act was passed in the wake of the highly-publicized death of Rehtaeh Parsons with the goal of offering protection in severe cases like hers. The 17-year-old attempted suicide and later died after she was relentlessly harassed by her peers, who circulated a photo she alleged showed her being raped.

But the Cyber-safety Act's definition of "cyberbullying" — essentially, the repeated use of technology to cause harm to another person's well-being — has drawn criticism for being too broad.

That criticism became abundantly apparent in the case of two feuding businessmen: Robert Snell tweeted and blogged snide remarks that Giles Crouch believed were aimed at him. In one case, after the two men saw each other in the street, Snell tweeted, "You see someone and want to clothesline them … That is normal, right?" Crouch applied for and obtained a Cyber Protection Order against Snell under the Cyber-safety Act, but that order was voided today by Supreme Court of Nova Scotia justice Glen McDougall.

Related: Rehtaeh Parsons' Death Inspired a Cyberbullying Law in Canada — But Does It Hurt Free Speech?

The judge sided with lawyer David Fraser, who argued the act infringed on two sections of the Canadian Charter of Rights and Freedoms. Fraser argued the definition of "cyberbullying" cast a broad net and violated section 2 (b), which guarantees freedom of expression, and the judge agreed, calling the Act a "spectacular failure" in its breadth.

Fraser also pointed out to the court that legislation allowed complainants to apply for and receive a protection order without the alleged perpetrator of the harassment having any say in court. In his client's case, Snell wasn't aware Crouch had asked for such an order until a police officer served him with it, which the judge agreed violated section seven of the Charter, which guarantees the right to life, liberty and security of the person.

Fraser didn't ask the judge to throw out the law. Instead, he wanted the act amended, which would allow Nova Scotians to continue to apply for its protection.

When VICE News spoke to the lawyer in August, he said it was unlikely the court would throw out the Act in its entirety.

In an interview Friday, Fraser agreed that a void currently exists in protections for harassment, but said severe cases of online harassment have protections under existing laws. In Parsons' case, for example, there were criminal harassment and child pornography charges that could have been applied, but at least initially, law enforcement failed to apply them.

Related: Canada's New Cyberbullying Law Is Targeting Teen Sexting Gone Awry

"In severe cases of online harassment, I actually don't think that there's a void. We do have existing laws under the criminal code and civil remedies that are available in those extreme cases," Fraser said.

"The bigger question to ask, and I think the Cyber-safety Act actually created a little bit of a diversion from that: why were the existing laws not actually applied by the police and the prosecutors at the time?"

However, Fraser said that any legislation that addresses that existing gap has to properly define "cyberbullying." His definition would include intent to cause harm, and would take into account vulnerabilities of the complainant and their relationship to the alleged harasser.

Fraser added that any new "cyberbullying" legislation should include a proper defense, such as fair comment and the defense of truth — both valid defenses in civil defamation law.

"Do I think that there is a place for a law like a Cyber-safety Act that does provide relief for victims of cyberbullying that might not amount to criminal conduct, or that would allow you to deal with situations outside of the criminal justice system, which is a pretty blunt instrument, I do."

Follow Hilary Beaumont on Twitter: @hilarybeaumont