Cyberbullying as a Tort

Just three weeks after Rehtaeh Parsons’s death, Nova Scotia enacted Canada’s first legislation establishing cyberbullying as a tort. Parsons, a 17-year-old from Cole Harbour, Nova Scotia, hanged herself after being cyberbullied.

In response, the province created the Nova Scotia Task Force on Bullying and Cyberbullying. The task force studied cyberbullying in-depth, issuing its recommendations in February 2012 as part of a 105-page report, Respectful and Responsible Relationships: There’s No App for That. Legislation followed. Nova Scotia’s Cyber-safety Act now allows a victim to sue the cyberbully in civil court.

This act has real teeth. If the cyberbully is a minor, the defendant’s parents could be jointly and severally liable for damages awarded to the plaintiff – including general, special, aggravated and punitive damages. With this new tort in cyberbullying, the question becomes this: Would a homeowners’ insurance policy provide coverage to parents sued for their child’s cyberbullying?

Most Canadian homeowners’ policies – and most in the United States – do not insure loss or damage resulting from any intentional or criminal act or failure to act.

Certainly cyberbullying is an intentional act. In its Bullying Prevention and Intervention, Policy/Program Memorandum No. 144, released in October 2007, Ontario’s Ministry of Education described bullying as a form of repeated, persistent and aggressive behaviour, directed at an individual, intended to cause fear and distress and/or harm to another person’s body, feelings, self-esteem or reputation. Most homeowners’ policies also exclude sexual, physical, psychological or emotional abuse, molestation or harassment or the failure of any person to take steps to prevent such abuse.

DUTIES ON PARENTS

Under Nova Scotia’s new law, a parent may avoid liability if he or she can satisfy the court that he or she exercised reasonable supervision over the defendant at the time of the cyberbullying. The court may consider a number of factors – including the age of the defendant, psychological or other medical disorders of the defendant, whether the parent supplied the electronic device used in the cyberbullying, any conditions imposed by the parent, whether the defendant was under the parent’s direct supervision and, if not, whether the parent acted unreasonably in failing to supervise the defendant.

If a court finds a parent failed to supervise his or her cyberbullying child, the homeowners’ carrier could have a strong argument against coverage based upon the “failure to act” clause. Of course, the suit could trigger a duty to defend – depending upon the wording of the lawsuit and the homeowners’ policy language.

If a cyberbully is found liable in a civil case, the Cyber-safety Act allows special, aggravated and punitive damages to be awarded against the parent. Keep in mind that most homeowners’ policies will not pay punitive or exemplary damages.

Legislators in the United States are also scrambling to address the issue of cyberbullying and teen suicides. No such Cyber-safety Act – in which parents face liability for their minor child’s cyberbullying – has been enacted in the U.S. – yet.

However, on October 1, Maryland’s legislature enacted Criminal Law – Misuse of Interactive Computer Service (Grace’s Law). Named after teenager Grace McComas’s post-bullying suicide, Grace’s Law expands Maryland’s cyber harassment law that applied only to harassment via e-mail to apply to harassment on social media as well.

Grace’s Law does not create a “tort” against either the cyberbully or his or her parent, but does impose criminal penalties. Conviction under the act carries a penalty of as much as a year imprisonment or a fine of up to $500.

The Educator Escalation Channel has partnered with Facebook. Days after Grace’s Law was enacted, Maryland’s Attorney General announced a joint initiative with Facebook. This new program allows Maryland school officials to object to a Facebook user’s content – flagging questionable or prohibited language.

School officials will not target speech that is unlawful; rather, they will flag speech they consider to be “hurtful or lacking in redeeming societal value.” Further, school officials say they are not going after the person who posted the offensive remarks; they just want the hurtful language taken off Facebook.

ALLEGATION OF NEGLIGENT SUPERVISION

While no other province in Canada has enacted legislation declaring cyberbullying to be a tort, per se – federally, the Senate standing committee on human rights has issued a 126-page report on cyberbullying and Ontario has introduced the Anti-Bullying Act, 2012 to create awareness and prevent cyberbullying in schools – parents could always face a lawsuit alleging negligent supervision as a result of cyberbullying. For example, such a lawsuit could be based on failure to properly supervise their child’s electronic activities.

Victims of cyberbullying may file civil actions against parents of cyberbullies for negligent supervision. Again, depending upon the wording of the lawsuit and the homeowners’ policy language, at the very least, a duty to defend could be triggered by such a lawsuit.

In response to the wave of recent tragedies arising from cyberbullying, many Canadian and U.S. communities alike have passed anti-bullying laws that carry criminal penalties.

After teenager Amanda Todd committed suicide, her city council of Port Coquitlam, British Columbia, passed a resolution making bullying a criminal offence punishable by fines or mandatory programs. The City of Regina also enacted an anti-bullying law – making it an offence to share intimate images without consent.

Similar criminal laws have recently been enacted in the Alberta towns of Blackfalds (with fines up to $10,000) and Hanna (with up to six months jail time – which could apply to bystanders who encourage bullying.)

While a homeowners’ policy excludes criminal acts, a parent could face a negligent supervision lawsuit after his or her child has been convicted of one of these crimes. Would a homeowners’ policy’s “failure to act” exclusion apply to such a suit?

It is not clear yet what impact Nova Scotia’s Cyber-safety Act will have on lawsuits against parents of cyberbullies. Other provinces may enact similar civil remedies for victims of cyberbullying.

But certainly personal lines’ insurers are confronted with increased exposures. In order to protect their interests, personal lines’ insurers might consider adding more specifically worded exclusions, such as the following:

• any “bodily injury,” “property damage” and “personal injury” arising out of electronic communication and any claim for damages of negligent supervision arising out of electronic communication, or

• any claim for damages of negligent supervision arising out of electronic communication.

Personal lines’ companies must remain vigilantly informed of legal developments of this evolving insurance exposure. Underwriters must be nimble and stand ready to respond as the courts issue opinions interpreting coverage – and we all know – there’s no app for that.