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Is cyberbullying a crime?

We all know the devastating effects cyberbullying has on our young. Amanda Todd’s tragic story is just one example of the hazardous outcomes of cyberbullying. Adults are also not immune to the significant emotional and financial damages caused by cyberbullying or cyberlibel. Indeed, even our athletes, who are used to the physical and emotional rigours of competitive sports, are not immune to its detrimental effects. For example, a successful female tennis player has recently announced her decision to quit playing, as a result of depression caused by cyberbullying.

Is cyberbullying so serious as to be considered a crime?

Apparently so. Bill C-273, An Act to Amend the Criminal Code (Cyberbullying), is currently before the Canadian Parliament and has received a second reading in June 2012. If and when this Bill receives Royal Assent, it would essentially make it a crime in Canada to:

(a) harass someone online; and
(b) defame someone online.

The Bill is heralded by some as a possible solution to the problem of cyberbullying, while others raise concerns about it, most significantly its potential infringement of freedom of expression.

The Bill is an interesting attempt by Parliament to address this very serious problem. But, if passed, will it be effective? I have significant reservations about that.

For starters, there are jurisdictional limitations. The Internet is a global phenomenon. In some cases, the cyberbully is not resident in Canada. Can she or he be prosecuted under Canadian laws? If so, would she or he care if they had no intention of setting foot in Canada?

Furthermore, most people would be surprised to discover that defamation has been part of our Criminal Code for years. Indeed, it is a crime under section 372 of the Criminal Code of Canada to defame another person. The only difference that Bill C-273 would have is that it would make it a crime to defame someone online. The reason most people do not know that defamation is a crime is because it is almost never prosecuted by the Crown. That is likely because there are no, or very limited, enforcement resources dedicated to prosecuting defamatory crimes. Indeed, if a person goes into a police station and reports that he or she has been defamed, he / she is most likely to be told to contact a lawyer because it is a “civil matter”.

Thus, if Parliament is serious about making cyberbullying a crime, it is not enough just to pass Bill C-273. Parliament would need to dedicate more resources to enforcing the Bill.

For now, and until the Bill is passed and enforced, victims of cyberbullying can and should use the resources available to them in the civil courts.

Maanit Zemel, Partner
Miller Thomson LLP

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
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