On October 5, 2017, the Nova Scotia Legislature introduced Bill No. 27, the Intimate Images and Cyber-protection Act (the “Cyber-protection Act”, or the “Act”). The Act comes as Nova Scotia’s previous cyber-bullying legislation, the Cyber-safety Act (“CSA”), was struck down in 2015 by the Nova Scotia Supreme Court on constitutional challenge.
UPDATE: The Act has now been passed and has received Royal Assent. It will come into force at a later date, yet to be determined.
The Cyber-protection Act, like the CSA, is notable for making Nova Scotia the first Canadian province to formalize and adopt cyber-bullying legislation. Similar to its predecessor, the Act proposes to create civil remedies to deter, prevent, and respond to the harms of non-consensual sharing of intimate images and cyber-bullying. Under the proposed Act, a complainant whose intimate image was distributed without consent or who was victim to cyber-bullying may apply to court for a wide range of remedial orders. The complainant must identify, depending on the circumstances, either the alleged perpetrator or the person(s) who have control over the IP address, email address, or any other unique identifier used to distribute the intimate images or cyber-bully.
A complainant must prove that cyber-bullying occurred or that an intimate image was distributed without consent. “Cyber-bullying” is defined broadly in the Act as an electronic communication that causes or is likely to cause harm, but requires an element of malice or recklessness that provides for a narrower definition when compared to the previous CSA definition. The overbreadth of what had constituted cyber-bullying in the CSA—in brief, any electronic communication intended or ought reasonably be expected to cause harm, without the explicit element of malice—was one of the chief reasons of the Nova Scotia Supreme Court’s decision to strike down the legislation.
Similarly, to make a distribution of an intimate image without consent requires knowledge that the depicted person did not consent, or being reckless as to whether consent was given. This is an extension of the scope of the Act, compared to the CSA, but it mirrors language that was added to s. 162.1 of the Criminal Code in 2014.
In making an order, the Act empowers the court to consider a wide range of possible remedies, notably:
- prohibiting a person from distributing the intimate images or making communications that would be cyber-bullying;
- ordering a person to pay general, special, aggravated, or punitive damages;
- ordering a person to account for profits; and
- making any order that is just and reasonable.
While the CSA did not provide for any affirmative defences, it is a defence under the Act for the respondent to show that the distribution of an intimate image was made with either implicit or explicit consent. Moreover, it is also a defence to show that the publication of a communication was, with respect to jurisprudence on defamation, (i) fair comment on a matter of public interest, (ii) done in a manner consistent with principles of responsible journalism, or (iii) privileged. Finally, where an intimate image was distributed without consent or a communication was made, it is a defence for the respondent to show that the distribution or communication is in the public interest and did not extend beyond what is in the public interest.
Nonetheless, the Act does not go as far as it might have in creating new defences or carving out protected forms of expression. Notably, although the Act draws on defamation doctrines, truth is not a defence under the Act.
The analysis of the CSA in Crouch v. Snell specifically noted that truth-finding and individual self-fulfillment are core Charter values; the assertion that the CSA could restrict this kind of expression was central to the conclusion that its limits on freedom of expression could not be saved under section 1 of the Charter. It is open to question whether the new Act may fail in the same way, for the same reason. However, from an instrumental perspective, the decision not to include a truth defence makes some logical sense: true statements, wielded with intent to harm, may be just as damaging as false ones. Ultimately the Act aims itself at the intent to harm rather than at falsehood.
However, this emphasis may actually contribute to the practical burden on the plaintiff. Where the CSA provided for an ex parte proceeding, which could be based on an objective assessment of the reasonably expected consequences of a communication, the Act contemplates contested proceedings which will have to consider the subjective intention behind a communication, the manner and circumstances in which it is carried out, and its actual (or likely) effects. These proceedings risk exposing plaintiffs to the very reputational harms the Act is intended to avoid. It may be open to question whether complainants will consider this a worthwhile exercise to engage with.
Finally, it is worth noting that CyberSCAN, the provincial agency previously empowered under the CSA to investigate and commence legal action against alleged respondents, has a diminished role under the Act. Although still empowered to provide voluntary dispute-resolution services, CyberSCAN retains only a public awareness, education, and advisory role under the Cyber-protection Act. While the administrative enforcement model of the CSA was subject to some criticism, questions have been raised (including in the Second Reading and Third Reading debates in the Nova Scotia House of Assembly) whether this change will deprive complainants of important support and assistance in the legal process.
On October 26th, the Act passed Third Reading and subsequently received Royal Assent to come into force at a later date. The final language of the Act, when compared to its initial introduction, increases CyberSCAN’s informational mandate and reduces the Minister’s review from within five years to three years of the Act coming into force. Given Nova Scotia’s leading role in advancing cyber-bullying legislation, its developments in this space should be closely watched, both to see whether the new balance sought by the Act attracts public support within the province (and, ultimately, judicial endorsement) and as a model that might be emulated by other provinces.
By Eriq Yu and Keith Rose
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