Writing the Right Law, Not Just a Law

In the wake of Rehteah Parsons death on 7 April 2013, Nova Scotia became the first Canadian jurisdiction to pass cyberbullying legislation, with the Cyber Safety Act becoming law on 10 May 2013.  At the time of its introduction multiple concerns were raised about the breadth of the Act, and the vagueness of its definitions, as well as the constitutionality of its approach.  This week the first formal complaint under the Act was made, by Nova Scotia legislator and actress Lenore Zann, after a teen posted a nude still from an acting performance to Twitter. 

The quick turnaround of Nova Scotia’s Act was a result of the widespread alarm and concern that erupted when the general public were made aware of the alleged rape, harassment and eventual suicide of Rehteah Parsons.  It is always tempting in the wake of a shocking event to react quickly to prevent future recurrences.  Unfortunately, the notion that the best response is to quickly draft a law to deal with the issue and move on is incorrect.  

To put it bluntly, it’s important to write the right law, not just a law.   

A missed opportunity

For an example of how this approach can go terribly wrong, consider the Video Privacy Protection Act in the United States.  It was drafted and passed by the US Congress in 1988, after a media outlet acquired and published Robert Bork’s videotape rental history during his nomination to the US Supreme Court. The Act protects the privacy of information about rentals of “pre-recorded video cassette tapes or similar audio visual material.” 

The Act is an excellent example of the failure of law to deal effectively with technology.  In the wake of a perceived violation of privacy legislation was drafted and passed to deal with that particular technology and prevent that particular kind of violation from recurring. So although the Electronic Privacy Information Centre describes the Act as “one of the strongest protections of consumer privacy against a specific form of data collection,” because of its specific link to a particular (and increasingly out-dated) medium it also constitutes a lost opportunity to apply similar, meaningful privacy protections against data collection more broadly in the US. 

What is Cyberbullying?

The recent wave of “cyberbullying” legislation poses the same risk—leaving the issue inadequately addressed with an ill-conceived legislative response to a poorly understood issue. These concerns were raised at the time the Bill was introduced, now that a complaint has come forward, it’s a good opportunity to re-examine the issue.

Conventionally, bullying is defined as having three components: 

• Aggressive behavior that involves unwanted, negative actions.
• A pattern of behavior repeated over time
• An imbalance of power or strength.

Dan Olweus, psychologist and noted author on the topic says, “A person is bullied when he or she is exposed, repeatedly and over time, to negative actions on the part of one or more other persons, and he or she has difficulty defending himself or herself."

Experts disagree over whether these same characteristics are present in cyberbullying.  Certainly traditional bullying requires a physical contact, or sharing physical space, while cyberbullying does not.  Because there is no requirement for co-location, cyberbullying may arise in multiple online spaces.  This—combined with the persistence of information in online spaces—means that cyberbullying can be seen or participated in by many more people, in many more places.  Online spaces can also facilitate anonymity or pseudonymity among those engaged in the bullying, which further increases the power differential and vulnerability experienced by someone being bullied.

After a Nova Scotia teen tweeted a topless photo (a still shot found online, from an episode of “The L Word” in which Ms. Zann was an actor) with the question “What happened to the old Lenore?”, the legislator contacted his parents, his school principal, and local school board as well as the police and CyberSCAM units, alleging that his actions constituted cyberbullying. 

The new Nova Scotia law defines cyberbullying as follows:

"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 is intended 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;

Discussing her complaint, Ms. Zann pointed to a three-hour discussion that took place on Twitter between herself, the youth himself and others, claiming that "It's not necessarily the image itself, but the fact that someone is tweeting that at me and saying, 'Hey Lenore Zann, where's the old Lenore now,' and calling it porn and things like that. I found that really humiliating and harassing."  Interestingly, it is also worth noting that under the Act’s expansive definition, the tone and content of Ms. Zann’s responses during that encounter could arguably open her to similar allegations of cyberbullying.

Meaningful protections

Ms. Zann’s invoking of humiliation classifies this incident as cyberbullying in the broad terms of the Cyber Safety Act, but it raises serious questions as well. Is this the sort of situation cyberbullying legislation was created to address?  Should politicians be able to use cyberbullying legislation to stifle questions and criticisms?  Are they the vulnerable persons such legislation was meant to protect?

These are emerging quandaries of digital life that have yet to be put to the test. As we grapple with new cultural and legal issues presented by interactions in online spaces—striving to balance protection of the vulnerable with freedom of expression, balance privacy with safety—complexities and long-term repercussions must be considered.

It isn’t enough to just do something, it’s important to do the right thing.