History of the Act

Online bullying has been gaining media attention in recent years with the high profile Canadian cases ofÌý,Ìý, and many others internationally. Many lawmakers have debated the need for increased legal tools to assist bullying victims, which culminated in Nova Scotia with the passing of the Act. The purpose of the Act is toÌý"provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying." TheÌýActÌýand the associated Ìýcame into force in 2013, and theÌýÌýunder the new Act was handed down in early February this year.


What Does the Act Do?

The purpose of the Act is to provide timely and tailored court orders to stop cyberbullying. The Act allows a victim or their representative to apply to a "justice" for a protection order. The Justice is given broad discretion to craft an order that will address the bullying, including orders prohibiting the bully from engaging in various conduct, procuring Internet service, or even forfeiture of electronic devices. The purpose of the Act is not to address bullying that has already happened, but to prevent it in the future.

There are many concerns over the new Act, and some believe that at least portions of it may be unconstitutional. These concerns include both the broad reach of the Act, and the process under which it is administered.

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Substantive Concerns

To be as effective as possible, the Act defined cyberbullying in a general manner:

"cyberbullying" 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 isÌýintended 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 [emphasis added]

It is unclear from the Act what harm to one's reputation is sufficient to qualify as cyber bullying, but this could potentially be interpreted to cover harm much broader than that covered by pre-existing defamation laws. Also troubling is that unlike , there is no exception for truth. Another interesting portion of the broad definition of cyberbullying is the extension to assisting andÌýencouraging these types of communication. This could extend the scope of cyberbullying to cover even liking or sharing an offending post.


The broad scope of cyberbullying is matched by the broad scope of discretion provided to the judiciary in making protection orders in accordance with the Act. While limited to one year, protection orders may include confiscation of electronic devices used for bullying, and orders restraining the victim from receiving Internet service. It is unclear how these orders will be enforced, but clearly these could have far-reaching impacts for not only the individual found in contravention of the Act, but also for anyone who shares devices or Internet access with him/her.

Procedural Concerns

In addition to the substantive concerns of what the Act covers, there have been a number of questions raised regarding how it operates procedurally. Of particular note is the fact that orders can be made without notifying the allegedly contravening parties, and those parties may only beÌýidentifiedÌýby an IP address or Internet handle within the proceedings. The troubling implication is that a protection order may be made against an individual who not only has no opportunity to respond, but possibly does not even know of the order. This could be seen as a serious slight against the right to be heard - a principle of fundamental justice.

Administrative law approaches to procedural fairness may also provide protections for those named as respondents according to the Act. Relevant to this discussion is the fact that administrativeÌýlawÌýguaranteesÌýprocedural fairness whenever a right or interest is engaged by an administrative decision-maker. The level of procedure is tailored based on numerous factors, but can include process far in excess of what is guaranteed by the Act. However, the remedies under administrative law are less severe, and a decision which breachesÌýproceduralÌýfairness is most often sent back to the national courts to be decided under a fair process.

The Act does require that any protection order issued by a Justice be approved by the Court, and that any protection order must be served on the other party. However, both of these protections are far less than those afforded by general civil law procedure.

Constitutional Issues

The may also have a role to play in determining whether this Act can stand the test of time. Section 7 of theÌýCharter provides everyone with "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." It could be argued that the right to liberty is engaged if the legislative provisions represent the possibility to confiscate electronic devices and limit Internet access. Such an analysis would also have to take a look at whether such an infringement on Charter rights (assuming it qualifies as an infringement) is acceptable in accordance with the reasonable limits set out in Section 1. If theÌýAct is found unconstitutional, the Nova Scotia legislature would likely have to redraft the impugned provisions, similar to the case of ,Ìýwhere privacy legislation was found to be unconstitutional (see IPilogue coverage on the case ).

Nova Scotia's new Act may indeed run afoul of either theÌýCharterÌýor principles of fundamental justice such as the right to be heard. However, any attempt to challenge the legislation on these bases would require a respondent affected by the Act to claim the Act's invalidity in a court proceeding. As this case is the first of many to be decided using the new powers granted by the legislation, it may be some time until an affected party attempts to challenge the provisions. Until then, trends from these cases will likely reveal the effectiveness of the legislation and whether the Nova Scotia legislature should rethink how much protection its Cyber-Safety Act truly provides.

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In late September the Supreme Court of Canada released AB v Bragg Communications Inc,, rev’d , rev’d in which a teenager sought to unmask her cyberbullies in order to pursue a defamation action, while preserving her own anonymity. At issue was the appropriate balance between the freedom of the press and open court principles on the one hand, and privacy and protecting children from cyberbullying on the other. This case is a good overview of what legal recourses are currently available to victims of online bullying and outline some of the difficulties they face in pursuing them.

In 2010, at age 15, A.B. discovered someone had created a fake Facebook profile of her, with a modified version of her name, a picture of her and other identifying details. On the profile were disparaging comments on her physical appearance as well as intimate and sexually explicit remarks. Within the month, the profile was taken down (interestingly, none of the judgments explain how this was done).

A.B., along with C.D., her father as litigation guardian, brought an application under Nova Scotia’s Civil Procedure Rules, NS Reg 370/2008 for an order for the internet service provider Eastlink to disclose the identity associated with the IP address which had created the fake profile in order to bring an action for defamation. Facebook had already supplied the IP address that created the profile and A.B. now sought to link it to an individual. This type of discovery mechanism is similar to the common law order outlined in Norwich Pharmacal Co v Comrs of Customs and Excise, [1974] AC 133 (HL) (discussed by IP Osgoode and ). For the order to be granted, the plaintiff must establish a prima facie defamation case.

In addition to the disclosure order, A.B. also requested a publication ban on the contents of the profile and her name. Eastlink, which is owned by Bragg Communications, did not oppose the motion at any level of trial. However, the publication ban caught the attention of The Halifax Herald and Global Television who intervened in opposition of the publication ban on the basis of the open court principle and freedom of expression. The trial judge found that A.B. had established a prima facie defamation case but he stayed the disclosure order until A.B. used her real name or an appeal allowed her to proceed anonymously. He reasoned that a publication ban would limit public awareness about the bullying that occurs on social networks and only an informed public can demand an issue be addressed. Furthermore, A.B. did not show that she would be specifically harmed by publication, especially since the profile had since been taken down [31-37]. The Court of Appeal agreed and focused on how defamation is an action for damage to the plaintiff’s reputation and the public nature of the action is part of how a reputation is restored and anonymity would be incompatible with this process [80-85].

Justice Abella, writing for a unanimous Supreme Court, found that when balancing between the open court principle and the privacy rights of A.B., harms to children can be determined objectively in the context of sexualized cyberbullying. This overturned the previous rulings which required that A.B. discharge the onus to demonstrate she would be specifically harmed by publication. The court had no trouble inferring that cyberbullying is harmful [20]. In doing so, the court lowered the burden of a plaintiff trying to unmask a bully. Having found that preserving A.B.’s anonymity was minimally intrusive upon freedom of expression, the Supreme Court did not find it necessary to keep the contents of the Facebook profile from publication provided it was not linked to A.B.

On balance, the court focused on the special circumstances of children who are bullied anonymously online and made it slightly easier for them to unmask their tormentors without fear of having to relive the bullying through the media coverage linked to their name. The court rightly focused on how the ability to proceed anonymously would increase the likelihood of a child protecting him or herself using the court system [25].

Even though the court lightened the burden of a young plaintiff seeking redress against cyberbullying, this case highlights the limits of the law.Ìý To respond to a Facebook profile created in minutes, the victim has no recourse to unmask their tormentor faster than the court system, which gets there, but not quickly—in this case about two and a half years.

Kalen LumsdenÌýis a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.Ìý As part of the program requirements, students are asked to write a blog on a topic of their choice.

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