The nature of cyberbullying is such that its scope of influence and potential for damage are significant. The most recent cyberbullying tragedy of teenager Amanda Todd, who committed suicide after an inappropriate photo of her went haywire on the internet causing her to be the victim of repeated harassment, threats, and even physical violence, reaffirmed the magnitude of this issue and the lack of efficient tools to punish and deter cyberbullying.
In the face of growing awareness regarding the issue of cyberbullying in Canada, Member of Parliament Hedy Fry of Vancouver Centre introduced Private Member's Bill C-273, "An Act to Amend the Criminal Code (Cyberbullying)" to the 41st Parliament for a first reading on September 19, 2011. On June 6, 2012, the Bill passed second reading and was referred to the Standing Committee on Justice and Human Rights. At this stage, it will be examined by members of a committee who may propose certain amendments.
The Bill intends to amend the Criminal Code in order to clarify that cyberbullying is an offence. However, it does not create a new and distinct crime of cyberbullying. Instead, it amends existing sections of the Criminal Code to include electronic manifestations of the respective crimes. Specifically, it amends sections 264, 298 and 372.
Section 264 is the harassment provision of the Code. It would be amended to include conduct that is communicated by means of a computer or a group of interconnected or related computers, including the internet, or any similar means of communication.
Section 298 pertains to defamatory libel. Proposed Bill C-273 would add, similarly to the addition to section 264, that the provision on defamatory libel applies in respect of a matter that is published by means of a computer or a group of interconnected or related computers, including the internet, or any similar means of communication.
Section 372 speaks to the crime of false messages. The current means of communication referenced in the provision are: letter, telegram, telephone, cable and radio. The proposed Bill seeks to add "computer or a group of interconnected or related computers, including the internet" to that list. It also seeks to add "indecent electronic message" and "repeated electronic messages" to subsections 2 and 3, which currently contain only "indecent telephone call" and "repeated telephone calls".
It remains to be seen whether this private member's bill will become law. It must still pass the report stage, third reading in the House of Commons, Senate consideration and royal assent. Furthermore, private member's bills have a much lower success rate than government bills.
If the Bill does pass, it would change the reality of cyberbullying from a perpetrator's perspective, as he or she would face a greater possibility of criminal charges when engaging in cyberbullying. It would also change the reality from a victim's perspective, because societal perceptions and state involvement in cyberbullying would become enhanced, resulting in greater protection for victims. If this particular private member's bill does not pass, increasing pressure might lead the government itself to draft and introduce a new bill which would specifically create a separate and distinct crime of cyberbullying.
THE NATURE OF CYBERBULLYING
Under the Ontario Accepting Schools Act, 2012, which came into force on September 1, 2012, cyberbullying is defined as bullying by electronic means, including:
- creating a web page or a blog in which the creator assumes the identity of another person;
- impersonating another person as the author of content or messages posted on the internet; and
- communicating material electronically to more than one individual or posting material on a website that may be accessed by one or more individuals.1
Cyberbullying differentiates itself from physical bullying on several grounds. Firstly, cyberbullies can often remain anonymous, masking their identities by creating false Facebook profiles or using temporary email accounts.
Moreover, electronic forums often lack supervision. Unlike in the classroom or school setting where a responsible adult is more readily available to respond to incidents of bullying, hostile and threatening behaviour on virtual forums may go unnoticed by adults.
Furthermore, the nature of the internet is such that an almost unlimited number of people can join in on the bullying, by commenting or re-posting comments or photos on electronic pages. Unlike physical bullying which occurs in a school or a neighbourhood, cyberbullying does not require physical proximity. Cyberbullying permits behaviour of harassment despite the possible physical distance between the bully and the victim.
For this same reason, cyberbullying is inescapable, following the victim into his or her very own home or bedroom.
Finally, the long-term effects of cyberbullying over traditional bullying can be greater in magnitude. Due to the nature of the internet, cyberbullying can leave widespread and potentially permanent damage to the victim and his or her reputation. For example, once a photo is circulated and made widely available, there is no limit on the number of people who can gain access to it and download it; very little, if anything, can be done to retrieve and delete it from computers worldwide.
The Canadian Teachers' Federation's Brief to the Department of Justice entitled "Addressing Cyberbullying" argues for the inclusion of cyberbullying within the Criminal Code because, it asserts, it is both unreasonable and impractical to place the burden on teachers and individuals to engage in lengthy and costly litigation related to cyberbullying. Rather, the Canadian Teachers' Federation argues, it is up to "Parliament to deliver a clear message that this reprehensible conduct is a crime which the state will prosecute".2
Inserting cyberbullying as an offence under the Criminal Code would make cyberbullying a societal problem and not just a school problem. Control, prevention, and punishment of cyberbullying would occur in the courts as well as the schools. Additionally, it would broaden the scope of authority from school administrators to law enforcement agents, such as police officers and the judiciary. While the implications are vast, proponents argue that such an approach is necessary to deal with the extreme repercussions of cyberbullying.
THE CURRENT INTERACTION OF CYBERBULLYING AND THE CRIMINAL CODE
Some forms of cyberbullying may already be interpreted as criminal acts under the Criminal Code. Law enforcement officers have already begun resorting to the Criminal Code in egregious cases of bullying and cyberbullying. Most recently, on October 19, 2012, police arrested eight teenage girls at a high school in London, Ontario, because they had been bullying another student, both physically and virtually.3 The girls face criminal harassment charges and more charges could be laid as the investigation continues.4
Currently, the existing Criminal Code provisions that are considered potentially applicable to cyberbullying are: criminal harassment (section 264), defamatory libel (section 298), false messages (section 372), and hate propaganda (section 320.1). However, these provisions are deficient for the purposes of prosecuting cyberbullying, making them of limited value. For example, the language used in the criminal harassment and false messages provisions do not make any reference to electronic forums, thus making it more challenging to interpret it as applicable to cyberbullying. With regards to defamatory libel, it is a rarely used Criminal Code provision. Finally, hate propaganda would only be directly engaged by conduct arising from the school setting in extraordinary circumstances.
Thus, while current Criminal Code provisions may be used, in the right circumstances, for cases of cyberbullying, experts are calling for new provisions creating a specific crime of cyberbullying, or, amendments to the current provisions explicitly adding the terms "computer", "internet", "technology" and "electronic communication" to the Criminal Code.5 In the report of the Nova Scotia Task Force on Bullying and Cyberbullying, A. Wayne MacKay, Dalhousie law professor, recommends that:
the provincial Minister of Justice make representations to the federal Minister of Justice about evaluating the effectiveness of current Criminal Code provisions in responding to bullying and cyberbullying and exploring the pros and cons of a distinct crime of bullying and cyberbullying.6
While there is currently no distinct crime of cyberbullying in Canadian criminal law, there are examples outside our border, where the specific offence of cyberbullying is both in existence and enforced.
EXAMPLES OF CYBERBULLYING IN CRIMINAL LAW SOUTH OF THE BORDER
Cyberbullying laws are pervasive in the United States. More generally, 49 states have laws pertaining to bullying.7 Specifically, 12 states have criminal sanctions attached to cyberbullying.8 A further four states have proposed criminal sanctions which have not yet passed into law.9 Sanctions range from state to state, but include short terms of imprisonment and monetary fines.
Unlike Canada, in the United States, each individual state has its own criminal laws. In the wake of certain tragedies resulting from cyberbullying, many states have amended their penal codes so that provisions relating to harassment or stalking, for example, include electronic means.10 Some states specifically use the term cyberbullying within their criminal legislation, creating a distinct and specific offence of cyberbullying. An example of one such law is the following:11
- A person commits the offense of cyberbullying if:
- He or she transmits, sends, or posts a communication by electronic means with the purpose to frighten, coerce, intimidate, threaten, abuse, harass, or alarm another person; and
- The transmission was in furtherance of severe, repeated, or
hostile behavior toward the other person.
- The offense of cyberbullying may be prosecuted in the county where the defendant was located when he or she transmitted, sent, or posted a communication by electronic means, in the county where the communication by electronic means was received by the person, or in the county where the person targeted by the electronic communications resides.
- Cyberbullying is a Class B misdemeanor.
Not all states' laws are as comprehensive as this one; some states do not create a distinct and specific offence of cyberbullying. Rather, they modify their existing provisions on crimes, such as harassment, to include electronic means. The latter approach is more similar to the current legislative developments in Canada.
The current debate finds itself at the intersection of cyberbullying and criminal sanctions. Despite the growing awareness regarding the issue of bullying and the attempts of legislation, such as the recently adopted Accepting Schools Act, 2012 in Ontario, to deter bullying and create accepting and safe school environments, the elusive and pervasive nature of cyberbullying leaves school administrators, parents, and legal professionals alike asking themselves whether cyberbullying should be specifically included in the Criminal Code.
1 S.O. 2012 C.5
2 Canadian Teachers' Federation "Addressing Cyberbullying: Brief to the Department of Justice" (June 2008), online: (http://www.ctf-fce.ca/publications/Briefs/BRIEF-Justice-reCyberconduct-eng.pdf) [CTF].
3 "8 Ontario girls arrested in high school bullying case" CBC News Canada (19 October 2012), online: CBC Radio-Canada (http://www.cbc.ca/news/canada/story/2012/10/19/london-bullying-arrests-girls-cyber.html)
4 "8 girls charged in London, Ont. Bullying case" CTV News (19 October, 2012), online: Bell Media (http://www.ctvnews.ca/canada/8-girls-charged-in-london-ont-bullying-case-1.1001975#.UKJ7Q-jH-dc.email)
5 CTF, supra note 2, at p 6.
6 Nova Scotia Task Force on Bullying and Cyberbullying, Respectful and Responsible Relationships: There's No App for That by A. Wayne MacKay (Province of Nova Scotia, February 29, 2012) at 66 [MacKay].
7 All but Montana, see Sameer Hinduja & Justin W Patchin, "State Cyberbullying Laws, A Brief Review of State Cyberbullying Laws and Policies" Cyberbullying Research Centre (November 2012), online: Cyberbullying Research Centre (http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf) at 1 [Hinduja & Patchin].
8 They are: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Nevada, North Carolina, North Dakota, Tenessee and Wisconsin. Although it does not have a general cyberbullying law in place, Montana has a criminal statute prohibiting harassment via electronic means. See Hinduja & Patchin, supra note 7, at 1.
9 They are: Colorado, Hawaii, Michigan and New York.
10 MacKay, supra note 6, at 57; Hinduja & Patchin.
11 Ark. Code Ann. §5-71-217, online : (http://www.arkleg.state.ar.us/assembly/2011/2011R/Acts/Act905.pdf).
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