This afternoon, the Canadian Justice Minister and the Minister of Public Safety and Emergency Preparedness announced a new bill designed to counter specific aspects of online cyberbullying. The bill does not create any new crime of cyberbullying (as existing laws can deal with harassment, extortion and the like), but it does create an offence related to the non-consensual distribution of intimate images online.
While I haven't had the opportunity to scrutinize the bill in great detail (update: now posted online here), it does create an to prohibit the non-consensual distribution of intimate images – punishable by a maximum penalty of five years’ imprisonment on indictment or six months’ imprisonment on summary conviction. An intimate image is one that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region or breast. Further, the image would be one for which, at the time of the recording, the person depicted had a reasonable expectation of privacy and, at the time of the offence, had not relinquished his or her privacy interest. How this will be construed by the courts will be something to watch closely.
The Bill also would permit the Court to order the removal of an intimate image that is posted online. This may ultimately be problematic as many of the online services that host such content would be based outside of Canada and likely beyond the effective jurisdiction of Canadian court orders. It may be more effective for any order to be directed that the person who posted it in the first place, who likely retains the ability to have it removed.
The law also augments existing investigation powers of the police -- all of which the Government has taken great pains to emphasise involve judicial oversight -- including preservation demands.
More analysis to follow. In the meantime, here is the media release and backgrounder prepared by the Department of Justice:
GOVERNMENT INTRODUCES LEGISLATION TO CRACK DOWN ON CYBERBULLYING
OTTAWA, November 20, 2013 – The Honourable Peter MacKay, P.C., Q.C., M.P.
for Central Nova, Minister of Justice and Attorney General of Canada, today introduced legislation to address criminal behaviour associated with cyberbullying. This legislation demonstrates the Government’s firm commitment to ensuring that Canadians are better protected against online exploitation. Minister MacKay was joined by the Honourable Steven Blaney, Minister of Public Safety and Emergency Preparedness.
“Our Government is committed to ensuring that our children are safe from online predators and from online exploitation. We have an obligation to help put an end to harmful online harassment and exploitation.
Cyberbullying goes far beyond schoolyard bullying and, in some cases, can cross the line into criminal activity,” said Minister Mackay. “With the click of a computer mouse, a person can be victimized before the entire world. As we have seen far too often, such conduct can destroy lives. It clearly demands a stronger criminal justice response, and we intend to provide one.”
The legislation being introduced today would:
- Prohibit the non-consensual distribution of intimate images;
- Empower a court to order the removal of intimate images from the Internet;
- Permit the court to order forfeiture of the computer, cell phone or other device used in the offence;
- Provide for reimbursement to victims for costs incurred in removing the intimate image from the Internet or elsewhere; and
- Empower the court to make an order to prevent someone from distributing intimate images.
The proposed investigative powers to identify and remedy this and other cybercrimes would be subject to appropriate judicial oversight.
The Government worked closely with the provinces and territories in developing the report and recommendations on which this legislation is closely based.
“With this legislation, we are confirming that this type of behaviour is absolutely unacceptable and has serious consequences,” added Minister Blaney. “As part of Bullying Awareness Week, we are committed to reminding victims that they are not alone, and encouraging them to reach out to a teacher, a trusted adult, a parent or a friend. Bullying – whether online or off – is a problem that affects us all, and we all have a role to play in stopping it.”
Working with partners in the public and private sectors, the Government of Canada is taking action to address all forms of bullying through education, awareness and prevention activities.
For example, the Government is also supporting the development of a number of school-based projects to prevent bullying, as part of $10 million in funding that was committed in 2012 towards new crime prevention projects.
Other important projects that the Government supports to address cyberbullying include the Cybertip.ca and NeedHelpNow.ca websites operated by the Canadian Centre for Child Protection. Canadians can use these websites to report online sexual exploitation of children and to seek help for exploitation resulting from the sharing of sexual images.
In addition, through the Government’s GetCyberSafe campaign, Canadians can get the information they need to protect themselves and their families against online threats, including cyberbullying.
For more information on Bullying Awareness Week, please visit the website www.bullyingawarenessweek.org.
Cyberbullying and the Non-Consensual distribution of Intimate Images
Bullying and Cyberbullying
Bullying, including cyberbullying, is a form of aggression, usually among children and youth but not always. When the bullying behaviour occurs via electronic means, it is often referred to as cyberbullying.
Bullying, including cyberbullying, can take many forms. Some forms, such as name-calling, teasing, belittling and social exclusion, are familiar and may be hurtful but are not criminal offences. However, bullying and cyberbullying conduct can escalate to more serious activities that are criminal offences under the Criminal Code, including criminal harassment (section 264); uttering threats (section 264.1); intimidation (subsection 423(1)); mischief in relation to data (subsection 430(1.1)); unauthorized use of computer (section 342.1); identity fraud (section 403); extortion (section 346); false messages, indecent or harassing telephone calls (section 372); counselling suicide (section 241); incitement of hatred (section 319); child pornography (section 163.1); and defamatory libel (sections 298-301).
More recently, a new form of cyberbullying has emerged that is not covered by the criminal law. It involves the distribution of intimate (sexual) images without the consent of the person depicted in the image.
Sometimes the motivation is to take revenge on a former partner (sometimes colloquially referred to as “revenge porn”). Young people are increasingly exchanging intimate images consensually, which is a problem in itself, but one that is exacerbated if those images later become fodder for humiliating cyberbullying attacks involving non-consensual distribution or so-called “sexploitation.”
Impact of Cyberbullying
Bullies have been around throughout history, but the widespread use of new communications technologies increases the potential impact of bullying behaviour. Bullies can now expand their audience from the schoolyard to around the globe. Once the bullying conduct is in cyberspace, it may be permanently available over the Internet, where it can spread quickly and often uncontrollably. This may compound feelings of fear, humiliation, and social isolation and have other negative effects on victims. There have been several reported cases of teen suicide where cyberbullying is alleged to have played a part.
At their October 2012 meeting, Federal-Provincial-Territorial Ministers responsible for Justice and Public Safety directed senior officials to identify potential gaps in the Criminal Code on cyberbullying and the non-consensual distribution of intimate images. The results of that review were published in a report in July 2013. The report concluded that a multi-pronged approach was needed to address cyberbullying. In addition to education, public awareness, and family and community support, the report recommended that the Criminal Code be amended to address certain gaps in the law and give law enforcement officers better tools to deal with the issue.
Bullying is also being addressed through non-legislative means, including education, awareness and prevention activities.
This reflects the fact that bullying is a social problem that needs comprehensive responses from schools, non-government organizations, the police, and community groups.
Proposed Criminal Code amendments
The federal Minister of Justice has introduced legislation to amend the Criminal Code to:
- Create a new offence to prohibit the non-consensual distribution of intimate images – punishable by a maximum penalty of five years’ imprisonment on indictment or six months’ imprisonment on summary conviction;
- Direct the sentencing judge to consider whether or not a person convicted of the new offence should be subject to a prohibition order that would restrict his or her use of the Internet for a specified period;
- Authorize a judge to order the removal of an intimate image from websites if the person depicted did not consent to having the image posted;
- Allow a judge to order restitution following a conviction to enable the victim to recoup expenses involved in having the images removed from the Internet or social media;
- Empower the court to seize and order the forfeiture of property related to the offence, such as computers and mobile devices;
- Specify that a justice may issue a recognizance order (peace bond) where there are reasonable grounds to believe an individual will commit the new offence; and
- Ensure that the spouse of an accused person is eligible to testify against the accused in court.
For purposes of the Criminal Code, “intimate image” would be defined as an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region or breast. Further, the image would be one for which, at the time of the recording, the person depicted had a reasonable expectation of privacy and, at the time of the offence, had not relinquished his or her privacy interest.
The proposed amendments to the Criminal Code would also modernize existing investigative powers (warrants and other judicial orders) to enable police – subject to prior judicial oversight –to obtain electronic evidence from the Internet and other new technologies more efficiently and effectively. More specifically, the proposed amendments would:
- Provide for preservation of volatile computer data;
- Require judicial authority to acquire preserved computer data, and require the deletion of such data when it is no longer needed;
- Update production orders and warrants to make them more responsive and appropriate for today’s advanced telecommunications environment;
- Give the police better tools to track and trace telecommunications to determine their origin or destination; and
- Streamline the process for obtaining multiple warrants and orders that are related to the execution of a wiretap authorization.
To safeguard privacy, none of the updates of investigative powers would allow access to data or subscriber information without prior judicial oversight.