Nova Scotia court holds for Plaintiff in action under NS Cyber-Safety Act

In Candelora v. Feser, Justice Joshua Arnold of the Supreme Court of Nova Scotia presided over the first case brought under Nova Scotia’s Intimate Images and Cyber-Protection Act, S.N.S. 2017, c. 7. The Act creates a statutory tort under which individuals can bring civil actions for the distribution of intimate images or cyber-bullying, the latter of which was at issue in the case. The Act defines “cyber-bullying” as follows:

3(c) "cyber-bullying" means an electronic communication, direct or indirect, that causes or is likely to cause harm to another individual's health or well-being where the person responsible for the communication maliciously intended to cause harm to

another individual's health or well-being or was reckless with regard to the risk of harm to another individual's health or well-being, and may include:

(i) creating a web page, blog or profile in which the creator assumes the identity of another person,

(ii) impersonating another person as the author of content or a message,

(iii) disclosure of sensitive personal facts or breach of confidence,

(iv) threats, intimidation or menacing conduct,

(v) communications that are grossly offensive, indecent, or obscene,

(vi) communications that are harassment,

(vii) making a false allegation,

(viii) communications that incite or encourage another person to commit suicide,

(ix) communications that denigrate another person because of any prohibited ground of discrimination listed in Section 5 of the Human Rights Act, or

(x) communications that incite or encourage another person to do any of the foregoing…

In this case, the Plaintiff, Candelora, was involved in fairly contentious family/custody proceedings with the defendant Feser. During a pickup of the child of the former marriage, Candelora verbally referred to Feser’s new spouse, Dadas, in uncomplimentary terms. Dialogue about this resulted in both Feser and Dadas unleashing a torrent of abusive, insulting Facebook posts about both Candelora and her lawyer in the family proceedings (long excerpts of which, along with related testimony, can be found in the decision). Candelora eventually brought an action against the two under the Act.

As this was a case of first instance, Arnold J. traced his way through various parts of the statute to underpin his findings. Facebook were clearly “electronic communications,” defined in the Act as “any form of electronic communication, including any text message, writing, photograph, picture recording or other matter that is communicated electronically.” On the issue of whether the postings were “direct or indirect,” the defendants argued that the posts were outside this scope because they were “private,” on the basis that Candelora was blocked from both Facebook accounts. Noting that Facebook posts have been held to constitute “publication” for defamation purposes, Justice Arnold noted that Dadas, in particular, had 4900 Facebook “friends” and many of her posts would receive 200-300 “likes.” He remarked:

The Facebook postings about Ms. Candelora are not private, whether or not she is blocked as a friend of the respondents. It would obviously defeat the entire purpose of this legislation if a respondent could avoid a claim based on Facebook postings simply by blocking the applicant.

Also, many of the postings were explicitly directed at, and even addressed, to Candelora.

The postings in question had not only caused physical, mental and emotional harm to Candelora, but had been maliciously intended to do so, or in some cases reckless as to whether this would occur. The defendants characterized their posts as being some sort of retaliation for letters that Candelora’s counsel had sent as part of the family proceedings, all of which were proper but which they nonetheless found objectionable. Malice and/or recklessness was clear, given that the defendants’ purpose was “to try to intimidate Ms. Candelora into changing the course of the custody and child support proceedings with Mr. Feser,” and “to bully Ms. Candelora so that she would feel psychologically pressured into reversing her legal position.”

As to other actions that constituted cyber-bullying, Justice Arnold held that the defendants had posted sensitive personal facts and information (including tax returns) about Candelora; were threatening and intimidating; and made many obscene and offensive comments. On the issue of whether there had been harassment, Justice Arnold noted that there was no definition of harassment in the Act but analogized to the offence in s. 264 of the Criminal Code; he held that the defendants were trying to dissuade Candelora from pursuing legitimate litigation goals, and had made her feel “continuously and chronically” worried, which made out harassment.

Holding that cyber-bullying had clearly been made out, Justice Arnold proceeded to consider a list of considerations (under s. 6 of the Act) for crafting an appropriate order. Among these were the content of the cyber-bullying (“offensive and designed to intimidate and humiliate”), its frequency (“prolific”), and the extent of the distribution (“significant”). He held that the Act should be interpreted consistently with the protection for freedom of expression in s. 2 of the Charter.

Arnold J. then considered the defences under s. 7 of the Act:

7 (1) In an application for an order respecting the distribution of an intimate image without consent or cyber-bullying under this Act, it is a defence for the respondent to show that the distribution of an intimate image without consent or communication is in the public interest and that the distribution or communication did not extend beyond what is in the public interest.

(2) In an application for an order respecting cyber-bullying under this Act, it is a defence for the respondent to show that

(a) the victim of the cyber-bullying expressly or by implication consented to the making of the communication;

(b) the publication of a communication was, in accordance with the rules of law relating to defamation,

(i) fair comment on a matter of public interest,

(ii) done in a manner consistent with principles of responsible journalism, or

(iii) privileged…

The defendants argued that “fair comment on a matter of public interest” applied on the basis that Candelora was a realtor and therefore a “public figure.” Interpreting this in line with the “fair comment” defence in defamation law, Arnold J. held that it was not made out: “Just because [Candelora] has a job whereby she advertises her services publicly does not allow the respondents, or anyone else, to maliciously tee-off on her online for the world to see.”

In the result, the defendants were ordered to cease cyber-bullying Candelora and to take down any cyber-bullying content, and were prohibited from communicating with Candelora or her counsel except regarding custody matters. The parties were ordered to file submissions on damages and costs.