2019 December 17

Candelora v. Feser, 2019 NSSC 370

In the first lawsuit under Nova Scotia’s new  “Intimate Images and Cyber-Protection Act,” the Nova Scotia Supreme Court granted remedies sought by the plaintiff and ordered that the defendant, her ex-husband and his new girl-friend, “take down any communications that are cyber-bullying [including] Facebook postings that refer directly or indirectly” to the plaintiff or to her lawyer and that the defendants “disable access to any communications that are cyber-bullying if such communications cannot be taken down.” The Court also prohibited any further cyber-bullying and any direct or indirect communications with the plaintiff, except through legal counsel or for the purpose of arranging access to the child of the marriage.  The Court directed that the parties make further submissions concerning the plaintiff’s claims for general, aggravated and punitive damages.

The “Intimate Images and Cyber-Protection Act,” which replaced the 2013 Cyber-Safety Act which had been ruled unconstitutional, creates civil remedies for “cyber-bullying” which is defined to mean “an electronic communication, direct or indirect, that causes or is likely to cause harm to another’s health or well-being where the person responsible for the communication maliciously intended to cause harm … or was reckless with regard to the risk of harm … 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 …”

The Court rejected the defendants’ submission that because they blocked the plaintiff from their Facebook friend list, the impugned postings were “private” and held that a so-called “private” Facebook profile does not immunize that account from a possible production order in civil litigation, following the decision of the Ontario Superior Court in Leduc v. Roman (2009), 308 D.L.R. (4th) 353 at paragraph 31.  “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.”