As schools, parents and students continue to struggle against cyberbullying on a daily basis, government and the courts are also responding to an increased demand for protections for victims of cyberbullying. Nova Scotia is the latest Canadian jurisdiction to address cyberbullying issues through new provincial legislation.
In 2013, Nova Scotia became the first province in Canada to implement legislation aimed at protecting victims of cyberbullying when it introduced the Cyber Safety Act. However, in December 2015, the Supreme Court of Nova Scotia struck down the legislation stating that it was contrary to the Canadian Charter of Rights and Freedoms because it violated protections guaranteeing freedom of expression and an individual’s right to life, liberty and security of the person.
On October 5, 2017, in another effort to implement cyberbullying legislation, Nova Scotia introduced Bill 27, the Intimate Images and Cyber-protection Act (“Bill 27”), which would create civil remedies in cases involving cyberbullying and the distribution of intimate images without consent.
Bill 27 has a narrower definition of cyberbullying than the Cyber Safety Act. Specifically, it defines cyberbullying as follows:
“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 individuals’ health or well-being, and may include:
- Creating a web page, blog or profile in which the creator assumes the identity of another person,
- Impersonating another person as the author of content or a message;
- Disclosure of sensitive personal facts or breach of confidence,
- Threats, intimidation or menacing conduct,
- Communications that are grossly offensive, indecent or obscene,
- Communications that are harassment,
- Making a false allegation,
- Communications that incite or encourage another person to commit suicide,
- Communications that denigrate another person because of any prohibited ground of discrimination listed in Section 5 of the Human Rights Act, or
- Communications that incite or encourage another person to do any of the foregoing.
Bill 27 further confirms that a person depicted in an intimate image does not lose his or her right to privacy where the person provides an image to someone, and the recipient of the image knows or ought to know that the image is not to be distributed to any other person.
Under Bill 27, a person, or the parent or guardian of a minor person, may apply to the Supreme Court of Nova Scotia (the “Court”) for an order if he or she has been depicted in an intimate image distributed without consent or has been a victim of cyberbullying. Bill 27 would provide the Court with a broad set of remedies. For example, the Court may make an order prohibiting a person from distributing the intimate image, from making communications that are representative of cyberbullying, or from making future contact with the victim or another person. The Court may also order a person to pay general, aggravated or punitive damages to an applicant.
We note that Bill 27 passed and received Royal Assent on October 26, 2017. We will continue to monitor whether the legislation becomes subject to a similar court challenge as its earlier iteration regarding its compliance with the Charter of Rights and Freedoms.
Another test of the law’s value will be developed through case law. One could reasonably expect that the Court will provide judicial interpretation on both the enforceability and the scope of the legislation. In addition, applications to the Court will provide interpretation of key concepts, such as what constitutes harm to an individual’s health and well-being and what may constitute consent to distribute intimate images.
Prosecution Under the Criminal Code
There are a growing number of incidents of cyberbullying and distribution of intimate images involving students across Canada. One recent Nova Scotia case has received significant media attention. Between December 1, 2014 and May 12, 2015, six male high school students in Bridgewater, Nova Scotia (the “Youth”) uploaded dozens of intimate pictures of female high school students to two online Dropbox accounts. The Youth, all of whom were under 18 years of age at the time the photos were distributed, were charged in July 2016 under federal Criminal Code provisions enacted in 2015 that make the non-consensual sharing of intimate images a criminal offence.1
In March 2017, the Youth pleaded guilty to sharing intimate images of teenage girls without their consent. At the sentencing hearing in September 2017, the Provincial Court of Nova Scotia gave the Youth conditional discharges, which means they are to follow court-imposed conditions for nine months and their youth records will be erased three years from the date they pleaded guilty. The conditions include performing community service and attending counseling. The judge acknowledged at the sentencing hearing that the Youth had made individual expressions of remorse and accepted responsibility for what they did.
The judge took issue, however, with the defence counsels’ submissions that the girls should have known that the intimate photos they shared through social media may be saved and/or shared. The judge stated that “Such thinking and such comments hearken back to a time of sexual stereotyping that anyone who has been offended against sexually must have put themselves in that position.”2 In fact, the girls depicted in the photos, who ranged in age from 13 to 17, testified as to the reason and circumstances in which they shared an intimate photo with the Youth, including that they felt pressured by repeated requests and that they were assured the images would not be shared.
The Nova Scotia case was one of the first, and largest, prosecutions involving the Criminal Code cyberbullying provisions to date.
The prosecutions under the 2015 cyberbullying amendments to the Criminal Code and Bill 27 demonstrate Nova Scotia’s commitment to establishing legislative and judicial mechanisms to counter cyberbullying. Bill 27 proposes to provide legal processes and remedies through which victims of cyberbullying may have recourse against cyberbullies. However, it remains to be seen if the Criminal Code and/or Bill 27 (if passed) will effectively deter students from cyberbullying and/or distributing intimate photos without consent. Parents, teachers and other members of the school community should continue to educate students about the consequences of cyberbullying and distributing intimate images of others, including the legal risks involved.