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Is the proposed ‘cyberbullying legislation’ the real deal?

On November 20, 2013, Bill C-13 received first reading before the House of Commons. The media touted Bill C-13 as the new “Cyberbullying Legislation”. However, assuming Bill C-13 receives royal assent, how effective will be it be in combating cyberbullying?

Bill C-13 is the result of months of consultations by various government officials. In June 2013, a report by the responsible task force was released on “Cyberbullying and the Non-Consensual Distribution of Intimate Images”. The task force identified gaps in the Criminal Code regarding cyberbullying and made several recommendations to address those gaps. Some of the task force recommendations made their way into Bill C-13.

Bill C-13 creates a new criminal offence: the dissemination and distribution of “intimate images” in any form, including over the Internet, without the consent of the person who appears in those images. “Intimate images” include nude or partially nude (the appearance of genitals, anal region and/or breasts), and sexually explicit images. Currently, the Criminal Code includes a similar offence, but only when a minor is depicted in the image (i.e., child pornography). The new “intimate Images” offence would apply to images of individuals of all ages.

If Bill C-13 comes into force, anyone 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 liable of an indictable offence and faces up to 5 years in prison.

The dissemination of an “intimate image” without consent often occurs after a breakdown in a consensual relationship. During the relationship, a spouse is provided with a nude or other sexually explicit photo or video of the other spouse. When the relationship breaks down, for vindictive or other reasons, the former spouse posts the photo or video online and that photo or video is disseminated over the Internet, often ending up on pornography sites. At that stage, it becomes very difficult to get the image removed from the web. It requires significant time and cost to track down the Internet service providers and website hosts and seek the removal of the images voluntarily, or to obtain multijurisdictional court orders for the removal. Indeed, I have had several clients whom I have assisted with similar scenarios. It can be devastating to the victim, personally and professionally. Thus, this offence is helpful, in that it would allow the victim the ability to seek redress through the police and the criminal courts.

Contrary to popular belief, what Bill C-13 does not do is create a new offence of “cyberbullying”. Rather, Bill C-13 updates some of the sections of the Criminal Code to be cyber-related. For example, it makes the offence of identity theft applicable to online identity theft and impersonation. It also makes it an offence to convey information online that a person knows is false with the intent to injure or alarm a person, and to harass a person through the means of repeated online communication.

Assuming Bill C-13 passes and the offence becomes law, it is questionable how it would impact the website operators and Internet service providers. For instance, most websites allow users to post images on their sites, with the confirmation that the person who appears in the images had consented to the posting. It is difficult if not impossible for the hosts of these websites and for the Internet service providers to determine, at first instance, whether the person who appears in the photos actually consented to their publication.

Furthermore, it is questionable whether this offence will withstand Charter scrutiny. In the case of R. v. Sharpe, the Supreme Court of Canada considered whether the offence of possession of child pornography violated section 2 of the Charter, namely, the right to freedom of expression. The Court held that the offence violated section 2, but, with some modifications, was saved under section 1 of the Charter, in that it was a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”. That is because it struck a balance between the right to freedom of expression and the importance of protecting children from harm. It is unclear whether the Court will come to a similar conclusion with respect to the “intimate image” offence, because the offence goes beyond protecting children from harm.

Finally, assuming Bill C-13 comes into force, it is questionable whether it would be effective in deterring and punishing cyberbullies, for several reasons. First, as mentioned, the proposed legislation does not actually create a “cyberbullying” offence, which can take many different forms, not only that of dissemination of intimate images, online harassment and impersonation. Secondly, it is only as effective as long as it is enforced. These types of offences are very time sensitive and require special investigative techniques. Specific resources would need to be provided to the police and the Crown in order to investigate and prosecute these offences in a timely manner. If the governments do not provide these additional resources, the likelihood of these offences being enforced in an effective manner is questionable.

For now, it is a positive move in the right direction. The future of the Bill, however, remains to be seen.

Maanit Zemel
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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