No one can argue that the introduction of the internet for general public use in the early 1990’s revolutionized communication throughout the world. As the internet gained popularity and use, new crimes involving computer networks also began to become increasingly common, but legislation and policing of these types of crimes has been somewhat slow to follow. In addition to fraud and identity theft, one of the most publicized online offences and of concern to law enforcement and the public is cyberbullying.
Bill C-13, the Protecting Canadians from Online Crime Act, was introduced by the Canadian government to take aim at cyberbullying (online bullying), and took effect on March 10, 2015. The Act includes amendments to Canada’s Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act.
Under the Criminal Code, it is an offence to share intimate or sexual pictures of someone without their consent. This legislation applies not only to adults, but to anyone under the age of 18. Also, under the new legislation, police officers can obtain a warrant to get information about an Internet user if they have reasonable grounds for suspicion that someone committed a cyberbullying-related offence.
The Government of Canada defines cyberbullying as “the use of information and communications technologies to support deliberate, repeated and hostile behaviour by an individual or group that is intended to harm others”. Cyberbullying and online harassment can overlap, and some cyberbullying actions are also criminal harassment under the Criminal Code, section 264. However, in terms of the popular definition, cyberbullying is most commonly used to describe intimidating and hurtful online technology among students.
For many Canadians, some of the most concerning incidents of cyberbullying in the past few years involved the distribution of intimate images of young people or students, which has been proven to have a significant impact on their self-esteem and, in some cases, has led to suicide. These incidents, in particular, increased public awareness of online bullying, and have put pressure on governments to take legal action to reduce and penalize cyberbullying.
Cyberbullying may involve use of the Internet, social networking sites, email and text messaging, to repeatedly harass or intimidate another person. Unlike other forms of bullying, cyberbullying can encompass a huge audience and may remain with a person around the clock and wherever they go.
Cyberbullying may include the following actions.
- Posting embarrassing or intimate photos of someone online
- Sending threatening or cruel text/instant messages or emails
- Creating a website to mock or embarrass someone
- Pretending to be another person by using their name or other personal information
- Tricking a person into divulging personal or embarrassing information and forwarding it to other people
Anyone who is convicted of distributing an intimate photo of someone without their consent may face serious penalties. An ‘intimate image’ is one that depicts a person engaged in an explicit sexual activity, in the nude, or depicting a sexual body part. Further, an intimate image is one where the person shown in the image would have had a reasonable expectation at the time of the recording that their image would remain private.
One of the key amendments to the Criminal Code under Bill C-13 is the following addition to section 162.1, pertaining to publication of an intimate image without consent. “Everyone who knowingly publishes distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty”. This offence may be prosecuted as an indictable offence with a maximum penalty of five years in jail, or as a summary conviction offence.
In addition to up to five years in jail, someone convicted of a cyberbullying offence may also face:
- Seizure of their cell phone, computer, iPad or other device used to share the image; and
- An order to reimburse the victim for the financial cost of removing the image from the internet or any other sites.
If, in the course of cyberbullying, the accused person made someone fear for their safety or the safety of others, they may be charged with criminal harassment, which carries a penalty of up to 10 years in prison. In addition to criminal harassment, the following are other Criminal Codeoffences that may be associated with online bullying depending on the nature of the accused’s action.
- Uttering threats
- Unauthorized use of a computer
- Mischief in relation to data
- Defamatory liable
- Identity fraud
- False messages, indecent or harassing telephone calls
- Counselling suicide
- Incitement of hatred
In a 2016 trial, R. v. Elliott, a Toronto man was accused of criminal harassment by tweeting (i.e. sending messages via online Twitter accounts) against two Toronto women. In order to prove the charge of criminal harassment, the prosecution was tasked with proving the following: that the defendant repeatedly communicated directly or indirectly with the complainants; his tweets harassed the women; he had knowledge that they were harassed; the complainants feared for their safety; and their fear was reasonable, given the circumstances of the case. The trial judge was convinced that the defendant repeatedly communicated with the women, they were harassed by his tweets, and there were grounds for him to know he was harassing them; however, the judge concluded that there were no reasonable grounds to believe that the women were actually afraid for their safety or had good reason to fear for their safety. Therefore, the charges of criminal harassment against both women were dismissed because the Crown failed to prove the element of fear beyond a reasonable doubt.
A person accused of a cyberbullying-related offence must, of course, be accorded the same right to a fair trial, where guilt for a specific charge is proven beyond a reasonable doubt, as in any other criminal prosecution. If you were detained or charged with any criminal offence, call Kruse Law today. At Kruse Law, our experienced criminal law team will work zealously to develop a strong defence strategy that explores all legal options for having the charge dismissed, or at the least, a reduction in sentencing.