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The New Tort of Cyber-Bullying

Posted by Gary A. Richard on 3 March 2014

The Province of Nova Scotia recently introduced the Cyber-safety Act, a statute intended to respond to a public outcry for a response to some recent and notoriously appalling cases. One aspect of the Cyber-safety Act that has not received as much attention as the much publicized quasi-criminal measures, such as protection orders, is the creation of an entirely new tort.

Though not an unprecedented step, and not uncommon in some jurisdictions, the Nova Scotia legislature does not make it a practice to create traditionally common law causes of action. Part II of the Act creates the tort of Cyberbullying, and it is an unusual cause of action.

It has some “usual” characteristics of a tort cause of action: a plaintiff can seek general, special, aggravated and punitive damages; as well as an injunction to prohibit, under pain of severe consequences, repetition of tortious conduct.

Damages may take into account, among other things; (a) any particular vulnerabilities of the plaintiff, (b) all aspects of the conduct of the defendant, and (c) the nature of any existing relationship between the plaintiff and the defendant. It is not entirely clear how the Court is supposed to consider these factors. For instance, one could see how any of these three characteristics could be framed as aggravating or mitigating on the issue of damages, depending on the peculiar facts of the case.

What makes this tort unusual is, the Act creates strict liability in the parent or guardian of a defendant cyberbully for any damages the cyberbully causes. The parent or guardian can only escape liability by proving that they were “exercising reasonable supervision over the defendant at the time the defendant engaged in the activity that caused the loss or damage and made reasonable efforts to prevent or discourage the defendant from engaging in the kind of activity that resulted in the loss or damage.” That is, the parents or guardians have to show due diligence. This kind of strict, or presumptive, liability is anomalous in intentional torts.

Aside from the media attention surrounding the cyberbullying issue, and something like a generational divide in attitudes towards social media, there is no principled reason why Nova Scotia should now have a statutorily created tort of cyberbullying, but no tort of bullying. victim A could be subjected to bullying that is more vicious and damaging than that suffered by victim B, a cyberbullying victim; but only victim B has a statutorily created tort to rely upon. Victim A is left with trying to establish liability on traditional negligence principles, and does not have the benefit of relying upon the parents or guardians of the defendant being vicarious liability by statutory presumption.

It may be that the new cyberbullying tort will be used at some point to argue that the Court should now recognize a more formally structured tort of bullying in order to bring some coherence to the common law in this difficult and important area of social concern.