New cyberbullying law can force removal of intimate images online
'My hope is we're able to offer protection for people, that we're able to offer some recourse'
A Nova Scotia anti-cyberbullying law inspired by the death of Rehtaeh Parsons has been redrafted and is now in force, giving a team of investigators a fresh mandate to stop people posting harmful words or images online.
The original law was created after the 17-year-old attempted suicide and was taken off life support in 2013 following the circulation of a digital photo of what her family says was a sexual assault.
However, the Nova Scotia Supreme Court squashed the previous Cyber-safety Act — the first of its kind in Canada — when it ruled in 2015 that its wide definition of cyberbullying infringed on Charter rights and freedom of expression.
Roger Merrick, head of the province's CyberScan unit, says he believes the new Intimate Images and Cyber-protection Act proclaimed Thursday balances freedom of expression with preventing people from being harmed by malicious postings.
"If you're going to say something and do something to cause harm to someone, then this legislation can be used to stop that," he said in an interview.
However, the narrower definition of cyberbullying also means respondents can argue they intended no harm, he added.
"The definition (of cyberbullying) now includes harm to a victim, it includes things like maliciousness," he said.
A news release from the province says the revised law allows the province's CyberScan unit to first attempt to work out a solution informally, and if that fails the victims may go to the courts to seek protection orders.
The complainants can also seek court orders for the removal of online material and — if the online abuse continues — go to the courts for civil remedies and compensation.
Restorative justice
The CyberScan unit will be governed by new regulations allowing staff to advise people of a cyberbullying complaint that's been made against them or their children, and to offer to resolve disputes and to assist with restorative justice.
Merrick says during the brief life of the prior legislation, there were 825 complaints, most of which investigators were able to resolve informally.
The legislation says the amount of damages that can be awarded for failing to comply with orders under the act will be determined by the courts.
Court orders must go through the provincial judiciary, rather than the old system that also permitted the use of a justice of the peace, a change some observers say could make enforcement more cumbersome.
Complaints must take initiative
Wayne MacKay, a professor emeritus at the Schulich School of Law at Dalhousie University, said he's concerned about "accessibility for the average person."
"Any remedies of any significance you have to get are from the superior courts, which ... is a lengthy and expensive process," he said.
He also says under the new legislation, the complainant themselves must seek a court solution while the old legislation allowed CyberScan investigators to bring the case forward.
The professor also sees some positive aspects of the new bill, particularly the inclusion of intimate images in the new law.
Revenge porn remedy
MacKay said this allows people who have experienced revenge porn or similar sharing of their intimate images a method to claim damages, rather than just relying on criminal proceedings.
"It allows for remedies, such as having the image taken down," he said. "It's a big step forward that catches up with Manitoba and Alberta who've had this in their laws."
The act will be reviewed three years from now to see if it is achieving its goals.
"My hope is we're able to offer protection for people, that we're able to offer some recourse and we're able to assist people from having harmful materials so people don't get hurt," said Merrick.