Does the New Nova Scotia Cyberbullying Law Verge on Censorship?

Screencapture from the official Nova Scotia CyberScan brochure.

On February 11th, Justice Heather Robertson made a ruling in favour of Chief Andrea Paul of Pictou Landing, Nova Scotia, enforcing the province’s Cyber Safety Act for the first time in a court of law. Although it seems like a step in the right direction, enacting this new legislation may have just screwed up the definition of cyberbullying.

The internet is anarchical, plain and simple. It’s as close you get to the land of do-as-you-please depicted in Alan Moore and David Lloyd’s V for Vendetta. Online, people do, say and take what they want with little accountability for their actions, giving way to both fantastic and terrible demonstrations of human nature. One of the unfortunate results of this is an incredibly interconnected society with a cyberbullying epidemic, a clear sign that the internet’s legal limbo needs some kind of framework. In Nova Scotia, it took the tragic death of a teenager, brought about by particularly hateful and persistent cyberbullying, for concrete legislation to be enacted. In November 2011 Rehtaeh Parsons was allegedly a victim of sexual abuse, documented via supposed-bystanders’ phones. The photos were later circulated across her school and town. She attempted suicide in April last year, which landed her in a coma, and her family chose to pull the plug a few days later. Although it’s absolutely mind-boggling how the authorities failed to protect her in any way while she was alive, and struggled to bring any kind of justice to her after she passed, one seemingly good thing did come out of the devastating incident.

The provincial government took action and came up with the Cyber Safety Act (CSA), passed on April 25th 2013. Only 18 days after Rehtaeh was taken off life support, this was the Nova Scotian authorities’ direct response to what happened. This act is supposedly proof that the province is “taking action to better protect victims and hold cyber bullies accountable for their harmful behaviour.” The problem lies in the definition that comes with the notion of cyberbullying: "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 wellbeing, self-esteem or reputation, and includes assisting or encouraging such communication in any way." According to David Fraser, one of Canada’s leading internet, technology and privacy lawyers, practicing in Nova Scotia, this is a potential flaw in the hastily written legislation that just might make it unconstitutional. While the section in the Canadian Charter that allows and promotes freedom of expression has its limitations, the idea of bringing in vague concepts like self-esteem and emotional wellbeing into the mix is problematic. The case of Andrea Paul is particularly relevant to this point, as it illustrates the dilemma between political accountability and respect for personal feelings.

On November 4th 2013, Chief Paul filed a complaint with the CyberSCAN unit created alongside the CSA, which is responsible for its enforcement. According to her statements, the accused, Christopher Prosper, was posting negative, hurtful comments about her and her family on various Facebook pages, including one called “Chief Andrea Paul of I.R.#24 Pictou Landing, Nova Scotia. A year in Review!” On those, he posted a bunch of fun stuff like “Sorry to say your [deceased] mom did not want you as chief!! She probably knew you were evil or not a good leader…” and “Do vote for Andrea Paul, she will back-stab you regardless if your [sic] are an elder… want names, I will produce!!”. He eventually went so far as contacting her teenage daughter after Chief Paul had told him to stop reaching out multiple times. When presented with the evidence, Justice Robertson granted a Cyberbully Prevention Order against Prosper, prohibiting him from contacting Chief Paul or any member of her family, and forcing him to delete his offensive posts. He was also ordered to repay Andrea Paul $750 she spent in legal fees. While his language (and grammar) were wildly inappropriate, one thing that the judgement failed to acknowledge, according to Fraser, is that the root of Prosper’s issue with Chief Paul had to do with how she operated as an elected official. For example, one of his earlier posts went something like: “Fuck sake’s Chief Andrea Paul why are you not having another financial information session? What are you hiding! An increase in your deficit!” They later got more personal: “Hey Chief Andrea […] when do we get our next financial information session!!!!! […] You crook, backstabbing bitch, two-faced to our elders. Your fake smile needs a punch in the face…” Essentially, he had a problem with her politics, and amongst the numerous personal attacks lay genuine concerns about the band’s finances and accountability to its members.

Convicting Prosper by labelling his actions as cyberbullying has the potential to severely limit political discourse on social media forums. Really, where do we draw the line between statements from a concerned citizen and personal attacks when they are so often intertwined in the wonderful world of politics and the notion of self-esteem? By presenting themselves out there, politicians are putting a face on decisions that affect entire communities, some of which will have negative reactions. Social media becomes the ideal platform to directly reach these people and debate over what should and shouldn’t be done. Of course, in the spirit of keyboard courage many constituents cross the line, but immediately labelling their concerns as cyberbullying has the potential to take us back to the times when one could not possibly be in disagreement with the Authority, so to speak. Social media has streamlined interactions between politicians and their people; it seems naïve to not have anticipated the few overzealous citizens who would take it to the next level.

This is not to say that nothing should have been done to stop Prosper, he was, in fact, becoming increasingly threatening in his posts. The CSA however, might not have been the ideal tool with which justice should have been administered in this case. True, the incidents did happen online, but the new act cannot become an umbrella law for everyone who is offended on the Web. This just means that there is an urgent need for more online safety laws with specific mandates that allow for free speech without automatic reprisal. Let us all be reminded that the CSA was enacted in response to what happened to Rehtaeh and others who have lost their lives as a result of legitimate, persistent cyberbullying, not to go after every lunatic behind a keyboard that pisses someone off.

@martcte