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A Review of the Nova Scotia Cyber-Safety Act
The Nova Scotia Legislature has introduced a new act to address the issue of cyberbullying. The Act, conveniently named the Cyber-Safety Act (the “Act“), has the cited purpose of providing safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.
So what is cyberbullying? The Act defines cyberbullying as any electronic communication through the use of technology 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. Cyberbullying can occur through the use of computers and other electronic devices and occur via social networks, text messaging, instant messaging, websites and electronic mail. It is noted that cyberbullying is typically a repeated action or has a continuing effect.
There are a number of ways in which someone can engage in cyberbullying. Obviously, the person actually making the communication that harms another person is engaging in cyberbullying.
The Act also makes it clear that anyone assisting or encouraging the communication is also engaging in cyberbullying. So while you may not be the one sending the text messages or posting the Facebook statuses, you can still be participating in the cyberbullying if you actively encourage such behaviour.
Finally, parents need to be aware of their role in cyberbullying. The Act states that when a parent of a minor (someone under the age of 19) knows that cyberbullying is taking place and knows, or should expect that, it is causing harm to another person and they fail to take steps to prevent the activity from continuing, the parent engages in cyberbullying.
SO WHAT DO YOU DO IF YOU OR SOMEONE YOU KNOW IS THE VICTIM OF CYBERBULLYING?
Bullying is certainly not a new phenomena. The difference is the form of bullying. As a result of technology, comments, posts, emails and other electronic communications are instant, far reaching and potentially irretrievable.
The Act has been implemented in an attempt to protect individuals from electronic forms of harassment. The Act not only creates criminal liability for cyberbullying but also provides a civil cause of action.
CRIMINAL LIABILITY FOR CYBERBULLYING
Under the Act, a person can make an application to a Justice for a Protection Order. A Protection Order is essentially an Order of the Court that sets out a number of restrictions or prohibitions for the protection of the victim. Such Orders can include the following:
- provisions prohibiting the bully from engaging in cyberbullying;
- provisions restricting or prohibiting the bully from, directly or indirectly, communicating with or contacting the victim or any other specified person;
- provisions restricting or prohibiting the bully from, directly or indirectly, communicating about the victim or any other specified person;
- provisions prohibiting or restricting the bully from using a specified or any means of electronic communication;
- an Order confiscating, for a specified period or permanently, any electronic device capable of connecting to an Internet Protocol address associated with the bully or used by the bully for cyberbullying;
- an Order requiring the bully to discontinue receiving service from an Internet service provider; and
- any other provision that the Justice considers necessary or advisable for the protection of the victim.
If the victim of the cyberbullying is not a minor (i.e. they are over the age of 19), they can bring an application for a Protection Order themselves. If the victim is a minor, the application must be brought by the victim’s parents or a police officer.
Upon the issuance of a Protection Order by the Justice, the Order is reviewed by the Court. The Court has the authority to accept the Order, vary it in some way, or require a hearing on the matter. Both the victim and the bully must attend the hearing and give evidence. Failure to attend can result in a positive outcome for the other party. After the completion of the hearing, the Court can accept the previous Order, vary the Order or revoke the Order.
A Protection Order is good for one year. After the year is up, an application for a new Protection Order may be made but only if a person believes that there is a continuing need for such an Order. It should be noted that, just because the bully is complying with the Protection Order does not mean there is not a continuing need for the Order.
So what does this all mean and how does it help the victim? The Act makes the failure to comply with a Protection Order an offense. It also makes it an offense to cause, contribute or permit someone to engage in activities contrary to a Protection Order. If someone is guilty of this offense, they could face up to 6 months in jail and potentially could be fined up to $5,000.
CIVIL LIABILITY FOR BULLYING
In addition to the criminal responsibility placed on bullies, the Act creates civil liability for cyberbullying. Essentially, that means that if you are the victim of cyberbullying, you can bring an action against your bully. As a result of such an action, the Court has a couple of options. The Court can award damages to the victim and these damages can include pain and suffering, out of pocket expenses and aggravated and punitive damages. The Court can also issue an injunction forcing the bully to refrain from cyberbullying.
Under the Act, if the bully is a minor, the bully’s parents share in the liability. The bully’s parents will also be held liable to the victim for the damages sustained unless the parent satisfies the Court that the parent was exercising reasonable supervision over the bully at the time the cyberbullying took place and made reasonable efforts to prevent or discourage the cyberbullying. In making this determination, the Court will look at a number of circumstances including characteristics of the bully but also the nature of the parenting that took place, including:
- whether the parents supplied the device used in the cyberbullying;
- the conditions imposed by the parent on the use by the bully of an electronic device;
- whether the parent was supervising the bully when the cyberbullying took place; and
- whether the parent SHOULD have been supervising the bully, or SHOULD have made arrangements to have the bully supervised, when the cyberbullying took place.