Social Media

Cyberbullying Laws in Canada

Written on Behalf of Affleck & Barrison LLP

In this “digital age” and with the prevailing use of social media by an increasing number of Canadians of all ages, challenges exist for legislators and law enforcement.

According to a Statistics Canada study in 2014, the first of its kind in Canada, nearly one in five internet users aged 15 to 29 reported having been cyberbullied or cyberstalked. In 2013, the Federal Government took a step towards addressing cyberbullying in Canada following the suicides of Rehtaeh Parsons and Amanda Todd (where intimate images of them had been shared without their consent), when it introduced Bill C-13, Protecting Canadians from Online Crime Act. This has significant implications, including jail time, for individuals charged under new provisions that have been added to the Criminal Code of Canada (“CC”) in the wake of Bill C-13.

WHAT IS CYBERBULLYING?

Cyberbullying is a form of bullying involving the use of communication technologies (instant messaging, social media, blogs, texting, or other internet sites) to repetitively intimidate, threaten, embarrass, or torment others.

This type of harassment, unlike face-to-face bullying, can occur 24 hours a day and is persistent and offensive. Due to the anonymity, people can say hurtful and cruel things and it is often harder to identify and stop them.

Examples of cyberbullying include:

  • Sending mean or threatening emails or text/instant messages;
  • Posting embarrassing photos of someone online;
  • Creating a website to make fun of others; or,
  • Tricking someone into revealing personal or embarrassing information and sending it to others.

CYBERBULLYING FOUND IN THE CRIMINAL CODE OF CANADA

The CC does not contain a specific provision for cyberbullying. However, when bullying behaviour crosses the line and becomes criminal conduct, the CC contains several provisions that can speak to these actions, including:

  • Criminal harassment (section 264);
  • Uttering threats (section 264.1);
  • Intimidation (section 423(1);
  • Mischief in relation to data (section 430(1.1);
  • Unauthorized use of computer (section 342.1);
  • Identity fraud (section 403);
  • Extortion (section 346);
  • False messages, indecent or harassing telephone calls (section 372);
  • Counselling suicide (section 241);
  • Child pornography offences (section 163.1)
  • Incitement of hatred (section 319);
  • Publication of an intimate image without consent (section 162.1); and,
  • Defamatory libel (sections 298-301).

PUBLICATION OF AN INTIMATE IMAGE WITHOUT CONSENT

As of March 2015, a new offence of sharing intimate images of a person without their consent was codified in the CC. This was legislated, in part, due to the increase in “revenge porn” and similar of sharing of intimate images online.

An intimate image is defined in section 162.1(2) of the CC as an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region, or breast. The image has to be one where the person believed that the photograph was private and did not consent to having it viewed by others.

CONSEQUENCES FOR PEOPLE ACCUSED OF CYBERBULLYING

The CC specifically sets out penalties for those convicted of publishing or transmitting an intimate image of a person without consent in section 162.1(1).

If convicted of distributing an intimate image without consent the legal consequences include:

  • Imprisonment for up to five years;
  • Seizure of their computer, cell phone, or other device used to share the image;
  • An order for the removal of intimate images from the internet if the images were posted without the consent of the person or persons in the image; and,
  • An order to reimburse the victim for costs incurred in removing the intimate image from the internet or elsewhere.

RECENT EXAMPLES OF CYBERBULLYING

As this is a relatively new offence, there are only a few reported cases that deal with this conduct.

In the Ontario case of R. v. A.C., the victim had taken nude photos of herself and sent them to the offender during their relationship who in turn shared the images because he wanted revenge. The sentencing judge in this case imposed a conditional discharge (no conviction is registered as long as conditions are met) with three years probation given that the offender expressed remorse and appreciated the impact that the offence had on the victim.  One of the terms of the probation was that the offender was not to possess any intimate images as defined by section 162.1 of the CC of any person who is known to him personally.

In the British Columbia case of R. v. P.S.D., the offender took two photos of the victim partially clothed, without her consent. The photos were sent to the offender’s two friends with the intention to cause the victim emotional harm. The photographs were found to be blurry and it was difficult to recognize the victim. The accused spent sixty days in pre-sentence custody. The sentencing judge found that there was a “relatively low level of harm” and imposed a two-year term of probation.

In the recent case of R. v. A.C., the accused pleaded guilty to the charge of sharing intimate images without consent. The sentencing judge found that the offender was not remorseful and did not appreciate how seriously the crime had affected the victim. Furthermore, the offender shared the images with the world, posting on more than one website. He also included the victim’s name, age, ethnicity, and place of birth. In this case, the accused was sentenced to five months imprisonment with a probation term of twelve months. He was also ordered to perform sixty hours of community service.

If you are facing criminal charges or have questions regarding your legal rights, please contact the criminal lawyers at Affleck & Barrison online or at 905-404-1947. We offer 24-hour phone service, 7 days a week for your convenience.

Why Posting Crimes on Social Media Is A Bad Idea

Written on Behalf of Affleck & Barrison LLP

Social media, for better or worse, is here to stay. Whether you use Facebook, Instagram, Snapchat or Twitter – there is a brave new world of connecting and sharing information with your friends, family and all of cyberspace. Police across the world are on social media too, and they are beginning to discover a new ways to use social media to catch law-breakers and to aid in investigations. A 2014 International Association of Chiefs of Police survey found that among the 600 law enforcement agencies questioned, about 95 percent use social media; 82.3 percent said that social media is foremost an investigatory tool; and 78.8 percent reported that social media helped solve crime in their jurisdictions.

In Pennsylvania, for example, a local newspaper started posting mug shots of people wanted by police officials on Pinterest, the popular photo-sharing site. As a result, the community experienced a 57% increase in arrests. Apparently, some people even called to say they had seen their own mug shot online and asked how to turn themselves in to authorities.

Closer to home, in Windsor, ON, police have been sharing videos on YouTube, Twitter and Facebook to help solve petty crimes or to locate missing children. Police have always reached out to the public to help solve a large proportion of their crimes, and social media is a logical extension of what they have always done.

But for all the different ways that police are finding to use social media, some people are just making it far too easy for them. Things that happen in cyberspace have real life consequences – and oversharing can sometimes land you in jail.  Earlier this week, a woman in Florida was arrested and charged after she posted a video of herself saying she was driving drunk on the live streaming app Periscope. Two people apparently called 911 to report the video to police. Police officers then watched the video and were able to determine the woman’s location and pull her over.

Today, technology drives the way that people live their lives and the reach that social media provides is absolutely unprecedented. It’s therefore more important than ever to be careful of what you say and do online, keeping in mind that almost nothing is truly private. Once something is out there in cyberspace, it’s out there forever.

To speak with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.