We’ve written before about overbroad anti-cyberbullying laws that can often allow for easy punishment without necessarily actually protecting anyone from cyberbullying. Usually, these laws are a quick response to a horrible tragedy. In that vein, Nova Scotia has introduced a new anti-cyberbullying act, the Cyber-safety Act, which many have described as awful, in response to a horrible tragedy.
The Act is a response to the death of Rehtaeh Parsons, who committed suicide after four boys allegedly raped her and distributed photos of the assault to the community. Because of the photographs, Rehtaeh suffered from years of bullying, forcing her family to relocate and leave the community. At the time of the incident, the police did not file any criminal charges. Now, two of the teens face child pornography charges. And the government has enacted the Cyber-safety Act.
The Act undoubtedly defines cyberbullying broadly:
‘[C]yberbullying’ means 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 . . . .
With a definition this broad, as Jesse Brown at Maclean’s points out, it’s hard to find a person who hasn’t been a cyberbully:
I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behavior. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being bullied by Chowhound critics.
The Act allows anyone who feels that they have been cyberbullied to make an application for a protective order to the court. But it is up to the judge to decide whether any particular claim meets the broad definition. In a completely ex parte process, the judge may make an order restricting or prohibiting communication. If the cyberbully is unknown, the judge may make orders necessary to identify the accused. The court may even hold the accused liable civilly and award damages to compensate the accuser.
As Tim Cushing over at Techdirt explains, the law allows anyone’s comments to be taken out of context and result in a civil suit or prison sentence:
The process isn’t adversarial at any point where some input or context might make a difference. Presumably, the accused can defend themselves once in civil court, but that will only mitigate the damages without having any effect on previous criminal charges or punishments already enacted.
As always, the problem with these laws is not that they lack good intentions. The problem is that they do not provide any clear definition for cyberbullying and broadly punish people for merely hurting others feelings. As Cushing continues:
Responding to a bullying incident by lowering the bar and raising the consequences is completely the wrong answer, no matter how tragic the incident. This new law has the potential to criminalize plenty of non-bullying activity and may actually encourage abuse by anyone who sees the possibilities provided by the law’s unintended consequences—an easy route to shut down and prosecute anyone who irritates them in any way.