One of the great struggles faced by legal systems world-wide is keeping pace with technological change. Inevitably, with each advancement, people find new ways to misbehave, and the law must evolve to accommodate these developments. Sometimes, in attempting to do so, legislatures miss the mark. Such was the case with Nova Scotia’s Cyber-Safety Act,1 which attempted to target cyber-bullying. The Act was struck down by the Supreme Court of Nova Scotia in Crouch v Snell,2 after it was found to unjustifiably violate the defendant’s rights under ss. 2(b) and s. 7 of the Canadian Charter of Rights and Freedoms.3
Nova Scotia is now on the verge of bringing into force new legislation to replace the stricken Cyber-Safety Act. Bill 27, The Intimate images and Cyber-protection Act,4 is intended to provide victims of cyber-bullying with non-criminal remedies, while avoiding the pitfalls that led to the striking of its predecessor. One expert has suggested that the alternative definition of cyber-bullying adopted in Bill 27 may raise the bar too high for complainants. This blog attempts to analyse the new definition in light of this suggestion, and offers its own view on the result of the changes made to the definition of cyber-bullying in Bill 27.
One of the reasons for the striking of the Cyber-safety Act was that its definition of cyber-bullying was found to be overbroad, encompassing conduct far beyond that which the legislation intended to prevent.5 The definition of cyber-bullying in the Cyber-safety Act read as follows:
“cyber-bullying” means 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 [to] 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 includes assisting or encouraging such communication in any way…6
Contrast this with the new definition in Bill 27:
“cyber-bullying” means an electronic communication, direct or indirect, that causes or is likely to cause harm to another individual’s health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual’s health or well-being or was reckless with regard to the risk of harm to another individual’s health or well-being…(emphasis added)7
There are two significant differences which separate the latter definition from the former. The first is that Bill 27 requires the plaintiff to demonstrate malice or recklessness on the part of the defendant. The new standards import a minimum intent requirement that was previously lacking, addressing one of the concerns with the original definition which led McDougall J. to declare the Act unconstitutional in Crouch v Snell.8 The second is that the Bill 27 definition only captures conduct which rises to the level of causing, or being likely to cause, harm to the plaintiff. This narrows the range of conduct considerably when compared to the former definition, in which the conduct need only have caused a feeling of distress in the plaintiff in order to be considered “cyber-bullying”.
In a blog post relating to Bill 27, David Fraser, who represented the defendant in Crouch v Snell, suggested that the importation of a malice requirement may have raised the bar too high for prospective applicants.9 While Fraser gives little attention to this issue in his blog beyond raising it, it is deserving of consideration, especially considering the proliferation of cyber-bullying in our society.
The new definition of “cyber-bullying” requires that the applicant prove malice or recklessness. In order to understand the impact of this change, it is necessary to examine what these two terms, in a legal sense, really mean. There are two types of malice: legal and factual. Legal malice, used for example in the law of defamation, can be implied merely from a wrongful act done intentionally, without just cause or excuse. Factual malice requires evidence of actual spite, ill will or improper motives on the part of the defendant.10 Thus, depending on which type of malice the court intends to rely upon when Bill 27 goes into effect and a judge has the first application before her/him, the requirement of malice may not be much more difficult to make out than the original “intent” stipulated in the Cyber-safety Act.
It is also open to an applicant to show that the defendant was reckless as to whether harm was caused or likely to be caused. Recklessness represents a lower standard than malicious intent, providing an alternative to proving malice. Recklessness requires a degree of subjectivity but also imports conceptions embarking on a risky course of action with unreasonable disregard as to the potential consequences.11 Recklessness represents the lowest level of subjectivity above an objective standard. Thus, an applicant could avoid demonstrating malicious intent on the part of the defendant if they could prove instead that the defendant acted recklessly as to whether their conduct harmed, or was likely to harm, the applicant. As the lowest subjective standard, this would be, theoretically, a much easier burden to meet than would be required under malice.
Thus, at present it is difficult to determine how the new definition of cyber-bullying will impact the ability of applicants under the Bill 27 framework to make out their cases. Practically speaking, the new malice and recklessness requirements may not have much of an impact, but this depends on how the court chooses to apply them. Until an application comes before a judge, or these ambiguities are addressed in the regulations supporting what will become the Intimate Images and Cyber-protection Act, a determination cannot be made either way. It should also be kept in mind that some standard of intention is necessary.
One of the downfalls of the Cyber-safety Act was that it captured conduct far beyond what was intended.12 Situations can be imagined where an individual, with entirely good intentions, might author an electronic communication that causes harm to another. Therefore, as sympathetic as the situation of cyber-bullying victims may be, the bar still needs to be set sufficiently high. Given that Bill 27 can still result indirectly in penal consequences for a respondent (should they fail to comply with an order), imposing the lowest level of subjective intent as the minimum burden which applicants will need to meet seems appropriate. Until more information is available, answers to the question raised by David Fraser remain speculative. It should not be taken as a matter of course, however, that the new cyber-bullying definition contained in Bill 27 has significantly disadvantaged prospective applicants.
1 Cyber-safety Act, S.N.S. 2013, c. 2 [Cyber-safety Act].
2 Crouch v Snell, 2015 NSSC 340 (CanLII), http://canlii.ca/t/gmhjl [Crouch v Snell].
3 Canadian Charter of Rights and Freedoms, ss 2(b) and s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
4 Bill 27, Intimate Images and Cyber-protection Act, 1st Sess, 63rd General Assembly, Nova Scotia, 2017 (assented to 26 October 2017) [Bill 27].
5 Crouch v Snell, supra note 2 at para 187.
6 Cyber-safety Act, supra note 1 at ss. 3(b).
7 Bill 27, Supra, note 4 at ss. 3(c).
8 Crouch v Snell, supra, note 2 at para 187.
9 See: David Fraser, “My comments on Nova Scotia's Intimate Images and Cyber-protection Act” (19 October 2017), Canadian Privacy Law Blog, online: <http://blog.privacylawyer.ca/2017/10/my-comments-on-nova-scotias-intimate.html>.
10 Yogis, John et al, Barron’s Canadian Law Dictionary, 6th ed. (Hauppauge, N.Y. : Barron's Educational Series, 2009) sub verbo “malice”.
11 Ibid sub verbo “reckless”.
12 Crouch v Snell, supra note 2 at para 115.