This morning, Justice Gerald Moir called an extraordinary court hearing this afternoon, “consider whether or not to impose an interim confidentiality order on all Cyber Safety Protection Orders currently in the Court’s files.” [emphasis in the email sent to reporters]
The Cyber Safety Act was quickly passed by the legislature in the spring of 2013, in the wake of Rehtaeh Parsons’ suicide. The Act “sends a clear message, cyberbullying is a serious act with serious consequences,” said Ross Landry in a news release. Landry was at the time the Justice Minister.
But was the Act passed too quickly, with not enough consideration for what it would bring?
After a 17-year-old boy tweeted a topless photo of MLA Lenore Zann (from her previous career as a Hollywood actor), Zann asked that the boy be investigated by the CyberSCAN Unit, a police investigative unit established by the act.
“Is this really what our new law—passed in the wake of the tragic Rehteah Parsons suicide—is supposed to prevent?” asked Stephen Kimber. “A teenaged boy using an easily publicly accessible image to poke unfunny fun at a prominent local politician?”
After a Twitter exchange, Frank Magazine owner Parker Rudderham sued a Cape Breton woman for defamation, and threatened “that further defamation would result in action taken against her under new cyberbullying legislation,” according to the Chronicle Herald.
So it’s with interest that today’s hearing was prompted by Frank Magazine’s Blake Hunsley asking for the Cyber Safety Protection Orders issued under the authority of the Act. As Frank reported today, Hunsley asked to see the orders on December 4.
“Although the purpose of the Cyber Protection Act is to ‘provide safer communities,’ it is mostly being used by adults to torment other adults,” wrote Frank.
At the hearing, Justice Moir said that there have been eight applications for Cyber Safety Protection Orders, and seven have been processed, with one withdrawn. I’m guessing that the the withdrawn application was Zann’s. Of the remaining, one was denied. Frank asked for three specific orders, one of which already has an interim confidentiality order in place, meaning that the media cannot report the name of the person seeking the order.
If the orders are deemed public, media have the right to publish the names of both the complainants and the targets of the orders.
Oddly, though, Frank didn’t send a lawyer to the hearing to advance the media’s interest. Rather, that chore fell to Nancy Rubin, who was representing the Chronicle Herald. As well, nine reporters, including myself, were present in the courtroom. The judge asked if any reporters had anything to contribute to the proceedings, but none of us did.
Moir outlined the relative provisions of the act dealing with publication bans, sections 16 and 17:
16 (1) Where any person involved in a proceeding relating to an application for a protection order is a minor, no person shall publish or broadcast the name of that person, or any information likely to identify that person.
(2) For greater certainty, subsection (1) continues to apply once the subject, respondent or witness is no longer a minor.
17 On the request of any person involved in a proceeding relating to a protection order, the Court may make an order prohibiting the publication or broadcast of the name of a person involved in a proceeding relating to the protection order, or any information likely to identify that person, if the Court is satisfied that the publication or broadcast could endanger the safety or well-being of that person.
Except in the clearly defined circumstances outlined in those two sections—in the case of a minor and when an applicant convinces a judge it’s necessary—the default presumption with protection orders issued under the authority of the Cyber Safety Act (and indeed, with all court records) is that the orders are public record. But, noted Moir, “at some point court staff started treated these files as confidential.”
Moir said he was concerned because he thought court workers may have given applicants for a protection order the impression that the files were confidential. “The court may have misled people into thinking a publication ban applies,” he said.
That was the court’s mistake, he said. The court files should be public.
The hearing was short, and Moir ended up ruling that an interim confidentiality order—essentially, a publication ban on identifying the complainants—will apply to all the protection orders, but only until January 19, when another hearing will be held. By that time, all the complainants will be notified and given the chance to argue for a continued publication ban. If they don’t file for the continued publication ban, the files will become public. If they do file, a judge will still have to decide.
Rubin represented the Chronicle Herald ably, and generously gave time to reporters from other media outlets after the hearing.
The legislation is overly broad, she said. “You can get a judgment for hurt feelings and damaged reputation. Damaged reputation is normally covered by defamation law where defence can be the truth,” but the mere allegation of harm to reputation is enough to get relief under the Cyber Safety Act.
The principle of an open court is important, and it’s good that the judge understands that principle. It’s worrying, and perhaps indicative of the paternalistic attitude of Nova Scotian government, that court workers simply assumed the Cyber Safety Act records would not be open to the public.
Further, I think there are legitimate concerns about the Cyber Safety Act that could and should be explored journalistically.
But what’s the end game here for Frank? Is this simply an exercise in opening up government? Or is it a salacious interest in outing people using the Act, say, the two women quoted pseudonymously in reporter Hilary Beaumont’s piece for The Coast, “The always-on stalker“? In that article, Beaumont relays that the two women complained to the CyberSCAN Unit. The unit seems to have dropped the investigation, and it’s not clear whether the two women applied for Cyber Safety Protection Orders, or if they got the orders.
I don’t know what motivates Frank. I know one of the women in Beaumont’s story, so after the hearing, I went to the court clerk’s office and asked to view the protection order files Frank had asked for—there’s no prohibition against simply viewing the files, just for publishing the names they contain—but the files won’t be available for a few days.
But it really doesn’t matter what motivates Frank. The take-away message from today’s hearing isn’t about Frank. Rather, the message is that the Cyber Safety Act was rushed through the legislature too quickly, without the so-called “sober consideration,” and as a result we have in place a law that—along with many other faults—could further victimize people seeking protection.