Throne speech calls for "new tools for law enforcement" against cyberbullying

Today's throne speech had some interesting things to say (but short on details) about the government's priorities. Among them is a commitment to introduce cyberbullying legislation, likely along the lines called for in the Federal/Provincial/Territorial report on cyberbullying.

From the speech:

Our Government will focus on protecting the most vulnerable of all victims, our children. Recent tragic deaths, including those of Amanda Todd, Rehtaeh Parsons, and Todd Loik, have shocked Canadians. Our Government will introduce legislation giving police and prosecutors new tools to effectively address cyberbullying that involves criminal invasion of privacy, intimidation and personal abuse. This legislation would create a new criminal offence prohibiting the non-consensual distribution of intimate images.

I have some serious concerns about the proposals put forward in the report of the Federal-Provincial-Territorial task force on Cyberbullying and the Non-Consensual Distribution of Intimate Images. I blogged about it here and have summed up my concerns in the following letter to the Department of Justice lawyer who is heading up this initiative:

Thank you very much for providing me with the opportunity to respond to the CCSO Cybercrime Working Group Report on Cyberbullying and the Non-consensual Distribution of Intimate Images (the “Report”).

To provide some context, I am a lawyer whose practice focuses on internet and privacy law. I have represented adult and child victims of online cyberbullying and harassment, including the non-consensual distribution of intimate images. I also regularly represent online service providers. I am a part-time member of the faculty of law of Dalhousie University, where I teach Law & Policy for E-commerce and Internet & Media Law. I am a former president of the Canadian IT Law Association and former chair of the Canadian Bar Association’s National Privacy and Access Law Section.

All of that being said, I must be clear that the following submission is solely my own and should not be attributed to any of the organizations referred to above, or to any of my clients.

My first general comment is that the Government should proceed cautiously and with all due deliberation. Cyberbullying evokes strong emotional reactions for a range of reasons, which may lead to hasty or ill-advised recommendations. Because cyberbullying--however repugnant--is “expressive”, it triggers section 2(b) of the Charter. Any regulation or prohibition must be done in a manner that is consistent with the Charter. If it is overbroad, it will be struck down leaving victims without any effective remedy.

With respect to Recommendation 4 in the Report, which addresses investigative powers, the working group has failed to make any compelling case for the need for new investigative powers other than preservation demands. Bill C-30 was fundamentally flawed and there are no circumstances that justify giving law enforcement the ability to obtain “subscriber information” without judicial authorization.

The current production order system in the Criminal Code, with some small tweaks, is up to the task of providing law enforcement with the ability to obtain all the information that is necessary to investigate anonymous or pseudonymous cyberbullying. The tweaks that would be advisable would be to clarify that a production order is applicable in all Canadian jurisdictions without need for endorsement.

In addition, the circumstances under which a production order may be obtained can be broadened by amending Section 487.012(3) of the Code (additions are shown in bold print):

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that

(a) an offence against this Act or any other Act of Parliament has been, is being or is about to be committed or is suspected to have been, is being or is about to be committed;

(b) the documents or data will afford evidence respecting the commission of the offence; and

(c) the person who is subject to the order has possession or control of the documents or data.

With respect to Recommendation 5, a new criminal offence of non-consensual distribution of intimate images, I urge a cautious approach. The Government needs to be very careful about what behaviours are intended to be criminalized while ensuring that other behaviours are not inadvertently made unlawful. This will be a difficult task.

As mentioned above, the distribution of any images -- including intimate images -- is constitutionally protected expression that can only be curtailed in a manner that is justifiable under Section 1 of the Charter. The distribution of intimate images without consent should not, in and of itself, be criminalized. A person e-mailing another person a photo from the Victoria’s Secret catalog or even a nude photo that is found on the internet should not be an offence. In such cases, the onus should not rest on the accused to show that there was consent for the dissemination of the image. This behaviour does not rise to the level of criminality that calls for a penal sanction.

Instead, the offence should focus on (i) the malicious purposes of the dissemination and (ii) knowledge of lack of consent or reckless disregard regarding the lack of consent. In the cyberbullying context, intimate images are usually disseminated or distributed for revenge or harassment purposes. The intent is to hurt the person depicted in them and this should be an essential element of the offence.

In addition, there is no need to restrict the application of the offence to the online context. While the mischief being addressed is cyberbullying, victims can be similarly harmed by offline dissemination of intimate images. However, it should be an aggravating factor is the person disseminates the image in a manner that makes it available to the broader public.

With the foregoing in mind, I suggest the following as an offence:

(1) Every one who, with the intent to cause significant emotional distress or humiliation, or to expose the person to hatred, contempt or ridicule, publishes, distributes or communicates to a third party an intimate image of that person without the consent of that person or with reckless disregard of the lack of consent from that person is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

(2) In subsection (1), an “intimate image” means a photographic, film or video recording made by any means of a person who is nude, or of a person’s genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and includes such an image created by the person depicted in the image, but does not include a drawing, painting or other similar illustration.

(3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor if the person caused the intimate image to be available to a wide audience.

Thank you again for being provided with an opportunity to share my opinions on this very important topic. I would be pleased to speak with you in greater details if it would be helpful to this initiative.

Only time will tell what the legislation will finally look like, but I urge caution and careful deliberation to make sure it does the job it is intended to and only that.