A Canadian lawyer has launched a constitutional challenge of an anti-online harassment law, arguing its definition of "cyberbullying" is too expansive and infringes on free expression.
The case of two feuding businessmen, one alleging the other "cyber-bullied" him, is raising new questions about the broadness of Nova Scotia's Cyber-Safety Act, which the province passed following the death of Rehtaeh Parsons.
Parsons, 17, was taken off life support after she attempted suicide in April, 2013. The Nova Scotian teenager had been relentlessly harassed after a non-consensual photo of her alleged rape circulated among her peers. After news of her death went viral worldwide, the NS government rushed to pass the Cyber-Safety Act. The legislation's goal was to fill gaps in existing laws, but it has drawn scrutiny for its overly-broad definition of "cyberbullying" — which is now being put to the test.
After he says he was bullied online last year, NS businessman Giles Crouch obtained an online restraining order under the Cyber-Safety Act against his former business partner Robert Snell. On Tuesday, a judge agreed that Snell's alleged online actions qualified as "cyberbullying," which in essence under the act means the repeated use of technology to cause damage or harm to another person's well-being.
Snell's alleged online bullying of Crouch started after the two men had a falling out.
In 2010, Crouch and Snell started a social media business, later known as MediaBadger, but according to Crouch, their relationship began to break down in 2011. He accused Snell of losing his temper and destroying office equipment during "unprovoked fits of rage" in the office. He also claimed his partner reneged on financial and software development duties.
According to Snell's side of the story, MediaBadger's failure "was largely caused by Mr. Crouch," and he resigned in response to questions "about professionalism and finances."
As part of the release, the two former partners agreed not to bad-mouth each other.
But months later, in June 2014, Crouch alleges Snell texted his employer to say the Canada Revenue Agency was trying to get in touch with him. Crouch viewed it as an attempt to undermine his reputation. Then in July, he says Snell "began what would be a several month long smear campaign" against him using Google+, Twitter, and his blog.
Snell allegedly posted snide comments on Twitter, including, "Received my weekly call where Agency X is looking for an idiot. Passed on the info & had a laugh. I'm going to miss these calls." And following Crouch's discussion of cybersecurity on CTV, Snell tweeted, "That is brilliant, almost like asking a plumber for medical advice."
One day, after the two former business partners spotted each other on the street, Snell tweeted, "You see someone and want to clothesline them … That is normal right?"
In his court brief, Crouch said the tweet caused him to fear for his safety, although Snell said he blocked his former partner from reading his tweets.
Crouch also said Snell hacked his Twitter account, but the respondent says that's not true.
Late last year, Crouch received several anonymous emails saying he was being dishonest and would be outed as a fraud. That's when he decided to take legal action.
Crouch's lawyer Laura Venoit told VICE News that when her client went to police, they told him the allegations didn't meet the narrow definition of criminal harassment, so they couldn't lay charges.
Crouch also considered launching a defamation suit, but he wanted a fast process that would result in the harassment ending and the bullying posts being taken down.
But as Fraser told VICE News, a judge issued Crouch a cyber-protection order without hearing Snell's position, since the process only requires one side of the story.
Crouch was never named in any of Snell's online comments, Fraser emphasized. Snell's tweets selected by Crouch "by and large" do not refer to him, and were taken out of context, he said.
Snell also denies sending any of the anonymous emails. As for "fits of rage," Snell admitted he cracked a desk one time, and hit his hand on a desk on another occasion.
Crouch accused Snell of breaching the protection order by tweeting a photo of a tie with a skull-and-crossbones print on the day the case was set to be heard in court, with the words "Could this be the tie for my meeting this afternoon? Probably not…"
Defining comments like the one above as "cyberbullying" is exactly why the law is too broad, Fraser told VICE News.
Under the act, "cyberbullying" is defined as: "Any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, 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, and included assisting or encouraging such communication in any way."
"If you look at all the kind of stuff that's happening right now with the election, anyone who tweets that [Liberal leader] Justin Trudeau isn't ready, well that probably hurts Justin Trudeau's feelings," Fraser told VICE News. "It certainly harms his reputation. If you do that in Nova Scotia, you are the definition of a cyber bully, which just seems so completely absurd, and so completely off the charts."
Although unlikely, Fraser said it's possible a court could throw out the legislation if he decides the definition is too broad. If that happens, the province would rewind to the time before Parsons' death, creating a legal void for victims of online abuse.
But Fraser isn't asking the judge to throw the law out. He wants the definition amended. If that happens, he says Nova Scotians can still seek the act's protection.
One of Fraser's colleagues in the privacy law field isn't so sure about that.
Lawyer Wayne MacKay, who helped draft the Cyber-Safety Act, told VICE News the Charter challenge absolutely could declaw the act's protections, leaving victims of online abuse high and dry.
"If you have too narrow a definition, all kinds of deserving cases are then not covered," MacKay said over the phone. Instead, he said the legislation should be "tweaked" so that it focuses "on the really needy cases" it was always designed to serve.
"Until that happens, I'm hoping it will still be there," he said.
He also pointed out that while the definition is broad, it's a judge that decides if the conduct falls under the act.
When asked about the severity of this case, and the fact that the applicant is a businessman who could afford a lawyer, MacKay said Nova Scotia's cyber safety system and the justice system in general should take into account factors such as whether they are a woman, a person of colour, or someone with a disability.
"The vulnerability of the victims and their access or lack of access to other remedies one would hope would be a factor in how quickly they could proceed through the cyber safety system," he said.
Crouch's lawyer Venoit told VICE News that while the harassment allegations in this case aren't nearly as severe as those in Parsons' case, anyone experiencing harassment should have protection under the law.
Meanwhile the province thinks the law is functioning just fine the way it is.
In court submissions, the NS Attorney General said the Cyber-Safety Act protects the victim's right to free expression, but said communications that qualify as "cyberbullying" under the act "are, due to their malicious and hurtful nature, low-value speech which do not accord with the values sought to be protected under the freedom of expression right within [the Charter]."
In his affidavit, Nova Scotia's director of public safety Roger Merrick says since the Cyber-Safety Act came into being in August 2013, the unit created to deal with online abuse, CyberScan, has received 513 complaints of "cyberbullying." Of those, 307 were complaints from adults.
The case continued in court Thursday. Fraser said it could be weeks or months before the judge makes a decision on whether the definition infringes on his client's free speech.
Follow Hilary Beaumont on Twitter: @hilarybeaumont