Cyberbullying and the Non-consensual Distribution of Intimate Images

Comparative International Legislative Responses

Most state governments in the United States have passed laws that allow school authorities to discipline students who engage in cyberbullying conduct. Some states have also enacted criminal laws creating misdemeanour offences for cyberbullying. While many resemble Canada's criminal harassment provisions, others appear to extend beyond "typical" harassing or stalking behaviour and directly address behaviour that causes distress to minors or school pupils. Australia, New Zealand, and the United Kingdom do not have stand-alone offences of cyberbullying. Australia and the United Kingdom rely on an offence similar to Canada's section 372 (false messages, indecent or harassing telephone calls). New Zealand is reportedly considering introducing two new offences to address the issue, including counselling suicide and "using a communications device to cause harm." (See Annex 2 for more details).

Conclusions on Cyberbullying

In examining the adequacy of these provisions and international perspectives, in responding to cyberbullying, the Working Group reached the following conclusions:

The Working Group does, however, believe that there are a number of Criminal Code amendments that could be made to enhance existing criminal law responses to bullying, including cyberbullying. Two of these recommendations support legislative reform already proposed by the government and the third relates to a Uniform Law Conference of Canada unanimous resolution (2009).

(1) Section 372

Section 372 (false messages, indecent telephone calls, harassing telephone calls) contains three offences applicable to the bullying context, but, as they are currently drafted, they cannot be effectively used in a cyberbullying context because they prohibit conduct which is committed through older technology. For example, subsection 372(1) prohibits, with intent to alarm or injure another person, the sending of false information via letter, telegram, telephone, cable, radio or otherwise. While it is arguable that "or otherwise" could be interpreted to include a broader range of technology than that which is currently listed, it is not clear. Subsection 372(3) prohibits, without lawful excuse and with intent to harass any person, making or causing to be made repeated telephone calls. As currently drafted, these offences may not apply in situations of cyberbullying if the information is conveyed via text or email as these means are not specifically referenced in the provision. The Working Group supports amending these offences to modernize the language to generally refer to any means of telecommunication, which would make this offence useful in a cyberbullying context.

Recommendation 2

The Working Group recommends that the three offences contained in section 372 (false messages, indecent phone calls, harassing phone calls) of the Criminal Code be modernized, to make clear that these offences can be committed through the use of electronic communications, and to ensure that the scope of the communication can be broader than just to one person.

(2) Sections 751 and 751.1 (costs to successful party in case of libel)

Some Working Group members expressed concern that sections 751 and 751.1 may be acting as an impediment to defamatory libel prosecutions. Defamatory libel occurs when someone injures the reputation of another through the publication of information. If the information is known to be false, then the more appropriate offence may be defamatory libel known to be false. This offence may apply in the context of cyberbullying. However, sections 751 and 751.1 provide a regime whereby the successful party in cases of libel is entitled to costs from the unsuccessful party. This may result in Crown reluctance to pursue prosecutions under the defamatory libel provisions.

The general rule is that a party to a criminal case, whether successful or unsuccessful, is not entitled to costs. Footnote 22 They are only usually available where the accused can show "a marked and unacceptable departure from the reasonable standards expected of the prosecution." Footnote 23

Sections 751 and 751.1 have been part of the Criminal Code since 1892. The original section Footnote 24 provided for costs to a successful party in the case of libel only in private prosecutions. The requirement that it be a private prosecution was removed in the 1954 revision. Footnote 25 The 2009 resolution of the Uniform Law Conference of Canada put forward by Ontario, and adopted unanimously, proposed the repeal of sections 751 and 751.1. An alternative approach would be to return the scope of the provision to its former form by having it apply only to "private prosecutions."

Although it is unclear what the impact of section 751 is on the number of prosecutions for defamatory libel, the Working Group recommends that further consideration be given to amending or repealing sections 751 and 751.1 of the Criminal Code.

Recommendation 3

The Working Group recommends that consideration be given to the repeal or amendment of section 751 (costs to successful party in case of libel) and 751.1 (recovery of costs-libel).

(3) Investigative Powers in the Internet Context

Cyberbullying and the non-consensual distribution of intimate images takes place primarily in the online world. Police estimate that 80% of major crimes leave behind or implicate electronic or telecommunications evidence. However, anytime police investigate crimes, many of which involve new technologies or crimes, they are mostly using investigative powers that are out of date and have been barely modernized since the advent of the Internet. The investigation of offences committed via the Internet, or that involves electronic evidence, would especially benefit from the availability of modern investigative tools.

Cyberbullying occurs in cyberspace, and the electronic evidence needed to obtain convictions of cyberbullying must be obtained from Internet service providers, content hosts and other social media services. The ability to preserve and obtain such evidence is crucial to every online investigation, and currently Canada's investigative powers are not robust enough to address the demands of cyber investigations. In this regard, Canada lags far behind its international partners.

The Federal Government has previously introduced legislative reforms to address the issue of modern technology and criminal investigations, but these have not yet been enacted. Footnote 26 These proposed reforms would have created new Criminal Code procedural tools, such as a scheme pertaining to the preservation of computer data, as well as new judicial production orders and warrants to obtain transmission data and to allow the police to trace the path of a communication to determine the originating service provider involved in the transmission of a specified communication. Complementary amendments would also have been made to ensure that those procedural powers are included in the Competition Act. The Mutual Legal Assistance in Criminal Matters Act should also reflect the new procedural powers, thereby widening the scope of assistance that Canada can provide to its treaty partners in fighting serious crimes at an international level, including computer-related criminality.

The Working Group strongly recommends that the Federal Government enact investigative tools and procedures which will enable law enforcement to keep pace with modern technology, similar to those elements which have previously been introduced by the Federal Government (see Footnote 26). These proposals would, for example, concretely assist police to respond to criminal harassment that occurs on the Internet, through the preservation of relevant data. Today, when police seek evidence of such crimes, the service provider may have deleted the relevant data before police can access it. The data preservation authority would allow police to freeze the data so that evidence is not lost. This approach would be balanced with privacy protections, including a requirement for judicial authority to access the data and requirements for deletion of the data, when the material is no longer needed for investigative or prosecution purposes. The amendments would ensure that the level of safeguards increases with the level of privacy interest involved.

Amending the Criminal Code to streamline the process for obtaining related court orders and warrants when applying for an authorization to intercept private communications would permit related applications to be made simultaneously, to the same judge, and for them to be simultaneously and automatically sealed. The issuance by the same judge of related authorizations, orders and warrants ensures that the judge in question has full oversight of the case, enhancing the safeguard of judicial scrutiny. These enhanced techniques could be used in the context of existing offences relating to activities that could constitute cyberbullying (such as section 372) and it is proposed that police have the ability to intercept private communications in the context of investigation of the non-consensual distribution of intimate images.

Recommendation 4

The Working Group recommends that the investigative powers contained in the Criminal Code be modernized. Specifically, the Working Group recommends that an approach consistent with recent proposed amendments on this subject to better facilitate the investigation of criminal activity, including activity that is conducted via telecommunication be introduced and implemented as part of any legislative package responding to cyberbullying. These amendments should include, among others:
  • Data preservation demands and orders;
  • New production orders to trace a specified communication;
  • New warrants and production orders for transmission data;
  • Improving judicial oversight while enhancing efficiencies in relation to authorizations, warrants and orders;
  • Other amendments to existing offences and investigative powers that will assist in the investigation of cyberbullying and other crimes that implicate electronic evidence.