HALIFAX — An anti-cyberbullying law drafted in response to the Rehtaeh Parsons case needs to be rewritten because it is too broad and allows anything online that hurts somebody's feelings to be considered an offence, a lawyer argued in Halifax Tuesday.
Halifax lawyer David Fraser asked the Supreme Court of Nova Scotia to hear the Charter challenge of the Cyber-safety Act Tuesday after a judge upheld a protection order in a case involving two businessmen.
Robert Snell has been accused of cyberbullying Giles Crouch when the two former business partners got into a dispute.
Crouch has been granted a cyber safety protection order under the new law, which prevents Snell from communicating with him.
After a judge's ruling that Snell had engaged in cyberbullying and the protection order was justified, Fraser told the court the law is an unreasonable and unjustified infringement of freedom of expression rights under sections 2b and 7 of the Constitution.
He argued that the law can't simply be left open to interpretation.
"To borrow a term that I've learned on social media the Cyber-safety Act is a dumpster fire that can only be extinguished by the Charter,'' said Fraser. "What is at issue . . . is the incredibly broad manner in which the act defines cyberbullying."
The provincial act defines cyberbullying as any electronic communication that "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."
Fraser said the law doesn't clearly spell out what is prohibited and simply gives the impression that "thou shalt not hurt anyone's feelings online."
Crown attorney Debbie Brown, appearing on behalf of Nova Scotia's attorney general, argued that in formulating the law the provincial legislature recognized that existing laws were insufficient and that cyberbullying is different than other forms of bullying.
"We are dealing with the cyber world where messages can go viral in a very short period of time," said Brown.
She said that's why the law allows a person being bullied to seek an order against their tormentor before a justice of the peace without giving notice.
That's something Fraser argues is against Charter rights, but Brown said is necessary to protect a complainant against potential retaliation from a bully, given the speed of technology.
Brown said with technology continuing to evolve the legislature had to create a definition for cyberbullying that would leave latitude for interpretation by the courts.
She said interpretation is part of the judicial process.
"To put too restrictive a definition in place, it would result in the act being essentially useless within a very short period of time," Brown said. "That would leave victims without recourse or any form of protection against cyberbullying."
She said it is the attorney general's position that the Nova Scotia law is constitutional.
The law was passed in May 2013 by the province's former NDP government in response to public outrage around the case of Rehtaeh Parsons.
The teen's family alleges Parsons was sexually assaulted in November 2011 and bullied for months when a digital photo of the assault was passed around her school.
She died after attempting suicide in April 2013.
Parsons' death also acted as a catalyst for the federal government, which changed the Criminal Code to make it illegal to distribute intimate images without consent.
The case was adjourned until Thursday when the Crown is expected to conclude its arguments before Judge Glen MacDougall.
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