New tort of cyberbullying
On May 10, 2013 the Nova Scotia legislature passed the Cyber-safety Act (Bill 61). When this bill comes into force, it will give rise to a new tort of cyberbullying that creates liability for the tortfeasor and potentially for his or her parent(s) if the tortfeasor is under the age of 19.
Tort of Cyberbullying
Cyberbullying is defined in the Act 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 includes assisting or encouraging such communication in any way.
A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.
While the Act does not provide any guidance as to the range of damages that may be awarded, it does allow for the court to consider any particular vulnerabilities of the plaintiff, all aspects of the conduct of the defendant and the nature of any existing relationship between the plaintiff and the defendant when assessing damages.
If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:
- Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and
- Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.
Factors the court will consider in making this assessment include:
- The age of the child;
- The prior conduct of the child;
- The physical and mental capacity of the child, including any psychological or other medical disorders of the child;
- Whether the child used an electronic device supplied by the parent, for the activity;
- Any conditions imposed by the parent on the use by the child of an electronic device;
- Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and
- Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.
What this means for you
The Cyber-safety Act has wide-ranging implications. First and foremost, it creates a new tort. It also presumes a form of vicarious liability for parents of cyberbulliers under the age of 19, however, this is rebuttable. Finally, other forms of vicarious liability are not precluded. For example, an employer could be vicariously liability for an employee who engages in cyberbullying in the workplace.