Canada’s Cyber-bullying Law

Although the Internet has no official governing body, this does not mean that there are no laws associated with the use of the Internet. The Internet provides its users with a certain level of anonymity and, while it is possible for technicians to ascertain the whereabouts of most online users via their IP address, the Internet greys the lines between regions, provinces, continents, borders and jurisdictions. Nevertheless, governments are beginning to design and implement laws that govern the behaviour of their citizens in cyber space. These laws are domestic laws, and may vary from country to country.

While most people consider the Internet a safe place to learn, watch videos, chat with friends, read emails and engage in other productive or entertaining endeavours, for some the Internet can also be a platform from which to dispense pain and humiliation. Different people respond to cyber abuse and even online bantering in different ways. Some shrug it off, others become depressed, and some, like Amanda Todd and Rehtaeh Parsons, even decide that living is no longer a pleasant thing. In light of these devastating happenings, Canadian legislators have decided to put in place a law that would, to a certain extent, govern the activities of Canadian citizens in cyberspace, and hopefully protect others from harmful behaviour. But will the Law serve its purpose?

What is Cyber-Bullying?

You may remember a kid whose lunch would be taken away on the playground, or the kid that everyone would make fun of in class. This child would be considered the target and those who made life unbearable for that child were considered bullies. In the age where the Internet was not widely accessible, the target most likely could escape by going home; the place where family would protect, console, and make the idea of the next day bearable. But in an age of perpetual Internet access brought about by the widespread proliferation of cell phones, tablets and computers, there is no real escape from the latest form of bullying, known as Cyber-bullying.

Cyber-bullying is a fairly new term that defines something that happens every day to many people — both young and old, but primarily young people — across the world. Cyber-bullying is defined as the use of the internet and information communication technologies inclusive of email and text messages in deliberate and hostile communication, intended to be harmful to its target.  Two well-known targets of cyber-bullying in Canada are Amanda Todd and Rehtaeh Parsons.

Many of the perpetrators of this type of bullying are young and may even be unaware of how impactful their behaviour can be. Others do understand, but choose to continue because it may be considered the one thing that would allow them to fit in with the “in” crowd. Whatever the motivations, Canadian legislators are lobbying for the enactment of legally enforceable punishments to be meted out to individuals who engage in any form of Cyber-bullying.

Canada’s Cyber-Bullying Legislation: Bill C-13

Bill C-13 is the Bill which holds the contents of Canada’s Cyber-bullying Laws. As of today, January 23, 2014, the Bill has not yet come into force, meaning that is not yet officially part of Canada’s Criminal Code. But when it comes into force, it will have important implications for the behaviour of Canadian citizens in cyber space. According to the First Reading of Bill C-13, the Bill is an amendment to the Canadian Criminal Code. The amendment would be added after Section 162, as 162.1 in the already established Canadian Criminal Code. The amendment states that an individual who engages in the distribution, transmission, sale or advertisement of an intimate image of a person “is guilty of an indictable offence”. This is especially damning if the accused had knowledge that the individual’s portrayed in the “intimate image” did not give permission for the creation, distribution, sale or advertisement of that image, or the conduct represented by that image. For example, if someone is being sexually assaulted in an image (as in the case of Rehtaeh Parsons), one can assume that the victim did not give permission for the creation of the image, nor the act being displayed in the image. Thus the distribution, sale, or advertisement of that image would be considered a violation of privacy.

The Bill goes on to provide clarity by defining the term “intimate image”. The Bill states that an intimate image is any recording in which:

1. A person is nude. This includes exposure of genitals, the anus or breasts.

1. The individual is engaged in overt/explicit sexual activity.

1. The circumstances being recorded “give rise to a reasonable expectation” of privacy. For example, it is popular consensus that sexual intercourse between a couple is an intimate, private act.

1. The individual being recorded retains a “reasonable expectation” of privacy at the time the recording is made. Thus, if an individual is engaging an act which he/she believes is private e.g. taking a shower, the individual expects privacy and to a large extent is of the belief that he/she retains privacy. The distribution, transmission, sale or advertisement of images in which the individual being recorded is unaware that he/she is being recorded therefore falls under the suggested amendment to the Canadian Criminal Code.

It is interesting to note that the Bill reserves from conviction, any individual whose conduct is seen as a service to the public good, and “does not extend beyond what serves the public good”. This is regardless of whether or not the actions fall under the purview of the “distribution, transmission, or sale” of an “intimate image”. Thus, if you have engaged in the distribution, transmission or sale of an intimate image that could in some way be helpful to the public good, while your act may be considered cyber-bullying, it would not be worthy of indictment. For example, this clause would reserve from indictment someone who had “intimate images” of a well known political figure with a prostitute or stripper, especially if, upon further investigation, it is found that public funds somehow facilitated the trysts evident in the “intimate images”.

The Application of the Law

The Law has not come into force. There is therefore no precedent. But the recent attempts by a Member of the Legislative Assembly (MLA), Lenore Zann, to use the contents of the Bill  to persuade a young Canadian citizen to remove a half nude image of her on the social networking site Twitter, brought to prominence the ambiguities and flaws of Bill C-13.  MLA Lenore Zann, gave her legal consent to participate in a show hosted by HBO. Her participation in the show included footage with her breasts exposed. She used her knowledge of the Bill to inform the young man, that his actions were legally unacceptable as per the information in Bill C-13. Zann argued that the bill defines cyber-bullying to include any form of online interaction that a perceived target may consider a violation of his/her “reasonable expectation of privacy.” But as is evident in the aforementioned case, too broad a definition can become problematic in the application of the law.

The clause which allows those whose actions serve the public good to be rescued from indictment has also brought to the fore the question of whether Bill C-13 was really drafted to protect victims such as Amanda Todd and Rehtaeh Parsons or whether it was drafted for the purpose of facilitating a dispersion of the knowledge of information that the Canadian government may deem as serving the public good. The draft of the Bill is deficient in that it does not adequately provide one with information about the scope of activities that would be considered “service to the public good”, but largely defines a scope of activities whereby an individual could face indictment. The language of this draft may make it difficult for individuals to make public or release any information that they deem as serving the public good for fear of being indicted on Cyber-bullying charges, and somewhat takes away from the freedom of activity in cyberspace.

Conclusion

The ambiguities of Bill C-13 make it very possible that an individual may unwittingly engage in activity that could be deemed cyber-bullying. Still, the Bill calls for careful use of cyberspace by Canadian citizens. Because of this, it is important for anyone who actively uses cyberspace to become well acquainted with the content and the intricacies of Bill C-13. The Law Firm of Ted Yoannou is capable of providing counsel and information Bill C-13 and its impact on the lives of ordinary citizens, as well as providing a defence for anyone who believes that he/she may be liable for indictment on cyber-bullying charges.