Cyberbullies returned to their keyboard crusades with a vengeance just days after the Nova Scotia Supreme Court struck down the province’s anti-cyberbullying law back in December, raising questions as to what extent the legal system should deal with cyberbullying, if at all.

Passed after the death of teen cyberbullying victim Rehtaeh Parsons, the 2013 Cyber-safety Act allowed judges to issue protection orders against online bullies and established CyberSCAN, an investigative unit working under the aegis of the province’s Department of Justice. The act offered a civil law option to handle cyberbullying.

In the wake of the Nova Scotia decision, and recent Ontario court rulings, the federal government is calling for proposals to evaluate cyberbullying – and possible intervention methods – across the country.

Nova Scotia’s Cyber-safety Act defined cyberbullying as “any electronic communication… that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage… to another person’s health, emotional well-being, self-esteem or reputation.”

But in his December 11, 2015, ruling, Supreme Court Justice Glen McDougall called the Cyber-safety Act’s definition of cyberbullying overly broad and a “colossal failure.”

In the court case that struck down the law, Crouch v. Snell, McDougall found that “many types of expression that go to the core of freedom of expression values might be caught in the definition of cyberbullying.”

Snell’s defence lawyer, David Fraser, explains, “While you can have a limit on the freedom of expression, it has to be justifiable under the Charter. And that’s where the Cyber-safety Act failed dramatically.”

Fraser condemned the NS legislature for not including specific input from the Nova Scotia Task Force on Bullying and Cyberbullying in its law, calling the omission “bordering on negligence.”

Professor Wayne MacKay, who chaired that task force, confirms that “there was very little consultation prior to the drafting of the Cyber-safety Act.” He says the task force findings influenced but did not directly result in the act.

“Our recommendations focused heavily on education and prevention and examining existing laws to see if they needed revision,” says MacKay.

But while MacKay is not surprised that there were constitutional issues with the Cyber-safety Act, he praises it for creating CyberSCAN and is disappointed that the law was thrown out entirely.

“The act filled a big gap in terms of a range of remedies for victims [who] wouldn’t have other options,” he says.

Among other things, it enabled the investigative unit to procure court-ordered information from ISPs and make “formal and informal agreements” with individuals engaged in cyberbullying.

“Any investigation that was thought to have a criminal element to it we would refer to the police. But we would [also] continue with our investigation,” says Nova Scotia Director of Public Safety Roger Merrick, who oversees CyberSCAN.

According to Merrick, the unit had investigated 820 complaints of cyberbullying since it began conducting investigations on September 30, 2013, but only 10 went to court.

“In many of our cases, [the cyberbullies] just stopped once they found out they could be held responsible.”

Fraser is critical of some of the tactics CyberSCAN used against alleged cyberbullies. “I’ve heard from a number of people who have led me to conclude that their modus operandi was essentially to bully people into shutting up.”

He cited the case of Nova Scotia MLA Lenore Zann, the actor-turned-politician who alleged cyberbullying after a 17-year-old tweeted a screenshot of the bare-breasted Zann from the TV series The L Word. Although Zann eventually dropped the complaint, Twitter user Ray McLennon, who tweeted about the incident, including links to similar photos, told the CBC that CyberSCAN instructed him to remove his tweets or face further consequences.

“That to me is intimidation,” says Fraser.

CyberSCAN had more than 40 open cases when the NS Supreme Court issued its judgment. The unit has since received renewed complaints from cases it has already handled but says law enforcement is now responsible for any further action. Merrick says the unit plans to continue its educational efforts with schools and law enforcement to help them better prevent and protect against cyberbullying.

While Fraser says CyberSCAN investigators “no longer have the stick in their hands,” he is troubled by the fact that they turned over their files to law enforcement instead of continuing to mediate issues of cyberbullying, as many cases do not involve a crime.

For his part, MacKay would like to see a redesigned act that would restore some of CyberSCAN’s authority.

Despite the law’s demise, he considers the Nova Scotia cyber-safety model a positive step in that it may inspire other jurisdictions to establish similar remedies, albeit with more constitutional considerations.

He stresses that time is of the essence, given the open cases of cyberbullying. “It’s particularly important when you think about the extreme consequences that can come from cyberbullying, as represented by the Rehtaeh Parsons case.”

In April 2013, the 17-year-old Parsons committed suicide following a series of traumatic events, including online harassment after explicit photos that allegedly depicted her being sexually assaulted circulated on the internet. She had reported the sexual assault to police, who did not find sufficient evidence to lay charges despite the fact that Parsons was a minor at the time the images were taken.

When the Parsons story broke, the immediate public outcry against the Nova Scotia justice system was impossible to ignore. An online petition demanded further investigation into law enforcement’s handling of the case.

YouTube accounts purporting to be from hacktivist group Anonymous released videos and statements in which they claimed to have discovered the identities of those responsible for assaulting Parsons and threatened to reveal the names of the alleged perpetrators if the RCMP failed to investigate further.

The activists added to the growing public pressure on the legislature to pass the Cyber-safety Act mere weeks after Parsons’s death. Her father, among others, believes further investigation into his daughter’s case would not have commenced without Anonymous.

“We saw people taking their own lives,” says Merrick, explaining that CyberSCAN was a reaction to the growing public demand to protect people online. “We were trying to provide a gap-filler.”

In a recent online exchange with me, two people claiming to be members of the Anonymous network expressed their support for the act’s intention to protect people against cyberbullying. “Existing laws do not address the phenomenon of sociopaths using the internet to hurt people without consequence,” writes an individual using the pseudonym Mercy.

Mercy qualified her support by saying that there are a lot of questions that keep her up at night about laws that seek to protect people online. “Could the video of Rob Ford smoking crack be declared an intimate image, if he’d just had the foresight to get naked first? Could politicians use these laws to escape scrutiny?”

Unlike in cases of defamation, the Cyber-safety Act did not consider the truth of alleged cyberbullies’ statements about their victims. The Nova Scotia Department of Justice is not yet sure whether it will appeal the Supreme Court decision.

Although Fraser has referred to the act as a “dumpster fire” in the past, he also believes there ought to be a way for the legal system to resolve cyberbullying cases short of giving people criminal records.

“The Criminal Code and the criminal law are an extremely blunt instrument, and it really does nothing to help the victim. It’s not designed to help the victim,” says Fraser.

He would like to see a law that addresses the “inherent vulnerability” of certain groups of people like children and adolescents, saying, “Some people are triggered more easily.”

Nineteen-year-old Andrea Villanueva, the co-founder of a Toronto-based “anti-slut-shaming” campaign, agrees that certain people are more susceptible to harm from online harassment.

Villanueva says she was the victim of sexual assault and cyberbullying at 14, resulting in mental-health issues that eventually landed her in the hospital.

Although she reported the sexual assault to police, she did not press charges or report the online circulation of an intimate image that served as fodder for cyberbullies. At the time, Canada’s intimate-image law under Bill C-13 did not yet exist.

“I didn’t want to be re-victimized,” says Villanueva, who feared her parents’ finding out if she had to attend court. “I guess I felt shame, yeah.”

Villanueva supports an option like CyberSCAN but believes that efforts to combat cyberbullying must also account for some people’s reluctance to report anything to authorities. “I probably wouldn’t have gone to [CyberSCAN],” she says.

Villanueva and her campaign aim to change the attitudes that may perpetuate cyberbullying, such as people’s tendencies to shame or “police others” and the desire to restore a power balance in their own lives.

Similarly, Fraser believes that approaches to dealing with cyberbullying must consider that “cyberbullies are often victims themselves.”

Several studies suggest that people who engage in online bullying may suffer from low self-esteem and are more likely to be bullied offline than those who do not engage in online bullying.

Both MacKay and Fraser believe that any new anti-cyberbullying law must include a more informed conversation and consultation with experts in various fields. At the very least, says Fraser, the process must result in a proper definition of cyberbullying – that is, before siccing cyber police on people.

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