Cyberbullying and other forms of harassment are an all too common part of online life. In October 2014, Pew Research Center reported that forty percent of adult Internet users have personally experienced online harassment, ranging from name-calling and embarrassment to physical threats, stalking and sexual harassment (www.pewinternet.org/2014/10/22/online-harassment). The Canadian Criminal Code contains offences that can be used to prosecute cyberbullies. In addition, the Criminal Code was recently amended to add a new offence of non-consensual publication/distribution of intimate images.

Criminal Mischief And Harassment

Criminal Code offences of mischief and harassment can be used to prosecute cyber misconduct. In October 2014, the Ontario Court of Appeal issued its decision in R. v. Dewan, a case involving an appeal from a sentence imposed for convictions for criminal mischief and criminal harassment. The criminal mischief conviction related to the accused’s distribution of a forged email, purportedly from a co-worker who rejected the accused’s romantic advances, which degraded the co-worker professionally, sexually and physically. The criminal harassment conviction related to the accused’s harassment of a former girlfriend, including distribution of a forged email purportedly from the former girlfriend and a naked photograph of the former girlfriend (which the accused had previously promised to delete), which degraded the former girlfriend professionally, sexually and physically and suggested she was a drug user. The accused’s misconduct had a significant adverse impact on the victims. The accused pleaded guilty and was sentenced, in addition to five months’ time served, to a suspended sentence and two years’ probation for the mischief conviction and 90 days’ imprisonment for the harassment conviction. The accused appealed the sentence and argued that a conditional discharge was an appropriate sentence. The court of appeal dismissed the appeal on the basis that a conditional discharge would be contrary to the public interest given the nature and seriousness of the offences. The court stated: “Intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind”.

Criminal Offence For Non-Consensual Publication/Distribution Of Intimate Images

In December 2014, the Protecting Canadians from Online Crime Act (formerly Bill C-13) amended the Criminal Codeand the Canada Evidence Act to add a new offence of non- consensual publication/distribution of intimate images and related enforcement and remedial powers, as follows:

  • The offence applies if a person knowingly or recklessly publishes, distributes, transmits, sells, makes available or advertises an “intimate image” of another person knowing that the person depicted in the image did not give their consent.
  • “Intimate image” is defined as a visual recording (including photo, film or video) of a person in which the person is nude or engaged in explicit sexual activity, which was created in circumstances that gave rise to a reasonable expectation of privacy, and in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.
  • It is a complete defence if the publication serves the “public good” and does not extend beyond what serves the “public good”.
  • The offence is punishable by up to five years imprisonment, and a convicted offender can be prohibited from using the Internet or other digital network except in accordance with conditions set by the court.
  • A court may order the seizure of intimate images, the removal or deletion of intimate images from a computer system (such as an Internet server), the recovery of expenses incurred to obtain the removal of intimate images and the forfeiture of property used in the commission of the offence.
  • The spouse of a person charged with non-consensual publication/distribution of intimate images can be compelled to give evidence for the prosecution without the consent of the person charged.

Comment

Cyberbullying is an increasingly common part of online life. Canadian criminal law prohibits various forms of cyberbullying and can result in serious criminal penalties (including imprisonment) for cyberbullies and in some circumstances for persons who knowingly or recklessly assist certain kinds of cyberbullying.