"It was just spur of the moment. I was with my friends at the time, so it was just messing around. I didn't mean for her to see it all, it was just a joke with my friends. I thought only my friends on my Facebook would see it..."
Keeley Houghton, 18 convicted of Internet bullying in the UK and jailed for three months after posting a threatening message towards another teen on Facebook.
The best possible solution to prevent cyberbullying is to promote healthy relationships for everyone, so that we treat each other with dignity and respect and bullying no longer has any place in our society. However, changing the culture that accepts bullying as a form of behaviour or even entertainment - as is played out in much of today’s popular culture – is often more difficult than changing policy and law. Recent high profile cases of teens in Canada and abroad who have committed suicide because of relentless cyberbullying, has increased the public call for accountability. There are already rules in place to protect children but it is likely stricter policies will eventually be introduced.
How the Law Currently Addresses Cyberbullying
Cyberbullying can be addressed under civil law or criminal law, based on the situation.
This is the branch of law that deals with property rights, personal dignity and freedom from injury. Under civil law, there are three approaches to cyberbullying:
1. A cyberbully may be engaged in defamation
Defamation is when the person who is bullying causes harm to someone’s reputation by spreading false information about that person. In general, defamation that appears temporarily (as unrecorded speech or in a live broadcast) is called slander, and defamation that appears permanently (in a book or on a Web site) is called libel.
To be libelous, a statement must do harm to someone’s reputation, have a clear and obvious target, and can be seen by people other than the person making the statement and the target.
In libel cases, the target can lay a suit against the person making the statement. If the suit is successful, the person making the statement will have to pay damages (money) to the target.
A person accused of libel may defend himself or herself by saying that the statement was true, that it was a fair comment (a genuine criticism, not a personal attack), or that he or she innocently reproduced the statement without knowing what it was.
2. The person cyberbullying may be creating an unsafe environment by making the target feel that she or he cannot go to school without facing violence, teasing or exclusion.
Schools and workplaces are required to provide a safe environment for their students or employees, and must take any appropriate action to do so. A school, therefore, might punish a student for online behaviour that is making it hard for other students to learn in a safe environment. In Ontario, the Safe Schools Act has been changed to specifically include online behaviour: students can now be suspended or expelled for cyberbullying, even if it is done outside the school.
A school or workplace that does not do everything it can to provide a safe environment can be sued by the target(s). Even if a statement is not libelous, spreading it around might still create an unsafe environment.
3. A person is responsible for any consequences that he or she might reasonably have guessed would happen.
Therefore, a person who is cyberbullying who suggests that a depressed student should kill herself would be liable if the student actually did kill herself, as long as the person who was cyberbullying had reason to believe it was a likely result.
This branch of law determines which actions are crimes against the state. In criminal law, there are two approaches to cyberbullying:
1. Harassment is a crime under the Criminal Code.
Harassment is when something a person says or does makes someone fear for his or her safety, or for the safety of others. Even if the perpetrator did not intend to frighten someone, she or he can be charged with harassment if the target feels threatened. Criminal harassment is punishable by up to 10 years in prison.
2. Defamatory libel is a crime under the Criminal Code.
It is most often treated as a crime if the libelous statement is directed against a person in authority and could seriously harm his or her reputation.
Defamatory libel is punishable by up to five years in prison.
3. Publishing intimate images without consent is a crime under the Criminal Code.
Publishing intimate images without consent was added as an offence in 2015. This includes both intentionally spreading an image “in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity” as well as “being reckless as to whether or not that person gave their consent to that conduct.
Section 2 of the Canadian Charter of Rights and Freedoms guarantees freedom of expression. However, this right is guaranteed, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” and, in the case of cyberbullying, must be weighed against Section 7 which guarantees “the right to life, liberty and security of the person.” In general, Section 2 of the Charter has not been accepted as a defence in civil or criminal bullying cases.
Provincial and Territorial Laws
Several provinces and territories have laws specifically dealing with online and offline bullying:
The Education Act now includes a specific definition of “bullying”: "bullying" means aggressive and typically repeated behaviour by a pupil where,
(a) the behaviour is intended by the pupil to have the effect of, or the pupil ought to know that the behaviour would be likely to have the effect of,
(i) causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual's reputation or harm to the individual's property, or
(ii) creating a negative environment at a school for another individual, and
(b) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, gender identity, gender expression, race, disability or the receipt of special education.
The following definition of cyberbullying is also given:
(1.2) Without limiting the generality of the definition of “bullying” in subsection (1), bullying includes bullying, known as cyber-bullying, that is done through any form of electronic means using any technique, including,
(a) creating a web page or a blog in which the creator assumes the identity of another person;
(b) impersonating another person as the author of posted content or messages; and
(c) communicating material to more than one person or posting material on an electronic medium that may be accessed by one or more persons.
The amended Act also requires schools to provide “instruction on bullying prevention during the school year for every pupil,” “remedial programs designed to assist victims of bullying” and “professional development programs that are designed to educate teachers in schools within its jurisdiction about bullying and strategies for dealing with bullying.” Each school board is also required to “establish a bullying prevention plan for bullying in schools within the board’s jurisdiction.”
In 2016 a new civil law tort called “public disclosure of embarrassing private facts” was recognized by the Ontario Superior Court of Justice. This was the result of a case where a woman who sued a former romantic partner for sharing without her permission a sexually explicit video she had sent him. The tort is defined as “one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”
An Act to prevent and stop bullying and violence in schools modifies the Education Act and the Act Respecting Private Education. It defines bullying as “any behaviour, speech, actions or gestures, including cyberbullying, expressed directly or indirectly, in particular through social media, having the aim of injuring, hurting, oppressing or ostracising an individual”. School boards are required to create anti-bullying plans and all school staff must take part in the plan.
The Education Act was revised in 2012 to define bullying as “repeated and hostile or demeaning behaviour by an individual in the school community where the behaviour is intended to cause harm, fear or distress to one or more other individuals in the school community, including psychological harm or harm to an individual’s reputation.” The Act requires students to “refrain from, report and not tolerate bullying or bullying behaviour directed toward others in the school, whether or not it occurs within the school building, during the school day or by electronic means,” while school boards must “establish, implement and maintain a policy respecting the board’s obligation under subsection (1)(d) to provide a welcoming, caring, respectful and safe learning environment that includes the establishment of a code of conduct for students that addresses bullying behaviour.” Alberta’s law is notable because it requires students to report cyberbullying if they witness it, with penalties including suspension and expulsion possible for those who do not.
In 2013 the province legally defined bullying as “behaviour, typically repeated, that is intended to cause or should be known to cause fear, intimidation, humiliation, distress or other harm to another person's body, feelings, self-esteem, reputation or property, and can be direct or indirect, and includes assisting or encouraging the behaviour in any way” and cyberbullying as “bullying by electronic means that occurs through the use of technology, including computers or other electronic devices, social networks, text messaging, instant messaging, websites or e-mail.” In 2015 a Nova Scotia judge ruled that the law violated the Charter of Rights and Freedoms and ordered it immediately struck down. At the time of writing (December 2015) no law has been drafted to replace it.
Section 1 of the Education Act includes both online and offline bullying in its definition of “serious misconduct.” Students are also guaranteed a “positive learning and working environment” free from “bullying, cyberbullying, harassment and other forms of disruptive or non-tolerated behaviour or misconduct, including behaviour or misconduct that occurs outside school hours and off the school grounds to the extent the behaviour or misconduct affects the school environment.” Principals are required to develop a positive learning and working environment plan and to report any incident of serious misconduct to the superintendent of the school district. Each school also must have a Parent School Support Committee that advises the principal on how to promote respectful behavior and prevent misconduct, helps to develop policies on how to prevent disrespectful behaviour or misconduct and how to support both those students who have participated in disrespectful behaviour and those who have been affected by it.
In 2013 the province passed a bill that defines bullying in a way that specifically includes cyberbullying and makes parents responsible for their children’s cyberbullying if the parent is aware of it, could reasonably predict the effect of it and did nothing to stop it. It also gives judges or justices of the peace the power to issue protection orders that may keep a perpetrator from contacting the target or even using any digital communications. The law also defines a tort of cyberbullying in civil law and allows targets to sue perpetrators or, in certain cases, their parents.
The Education Act now includes a definition of “bullying” that includes acts, committed in school and out of school, intended or likely to cause fear or distress or to create a negative learning environment and where there is a real or perceived power difference between the perpetrator and the target. It also provides examples of cyberbullying including impersonating someone online or sharing harmful content online. The Act also requires school divisions to create Safe Schools Plans that address bullying and cyberbullying.
 Doe 464533 v N.D., 2016 ONSC 541 (CanLII). https://www.canlii.org/en/on/onsc/doc/2016/2016onsc541/2016onsc541.html