The new age of cyberbullying

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There has been an increase in cyberbullying with the rise of social media. According to the Canadian government, “cyberbullying involves the use of communication technologies … to repeatedly intimidate or harass others”. Federal and provincial governments have effected legislative change to make harmful cyberbullying behaviours criminal or at least provide civil remedies for those harmed. Other methods of deterring cyberbullying include education and policies implemented by social media platforms. Cyberbullying is not limited to children and teens. Similar to schools, workplaces should have policies and guidelines in place which provide for a safe environment for their employees.

Legislative and jurisprudential intervention

Federal legislation: Under the Canadian Criminal Code there are numerous laws that apply to cyberbullying, depending on the specific behaviour. The most specific cyberbullying provision in the Criminal Code is section 162.1 which was introduced in 2015 to address the sharing of intimate images without consent. There are, however, other criminal provisions that can apply if the cyberbullying does not involve intimate images, depending on the nature of the activity involved, including:

  • criminal harassment (section 264)
  • uttering threats (section 264.1)
  • intimidation (subsection 423(1))
  • extortion (section 346)
  • false messages, indecent or harassing telephone calls (section 372)
  • counselling suicide (section 241)
  • defamatory libel (sections 298-301)
  • incitement of hatred (section 319)

Provincial legislation: Provincial governments have similarly attempted to deter cyberbullying through legislation. For example:

  • Nova Scotia recently proclaimed the Intimate Images and Cyber-Protection Act (IICPA), which replaces the Cyber-safety Act that did not withstand a 2015 constitutional challenge. The IICPA provides broad remedies for victims and parents if they can identify the perpetrator, the IP address holder, or email address owner. In addition, it reinstates the role of the CyberScan unit which can assist victims in navigating the justice system. The IICPA does not create liability for social media platforms.
  • Though not specific to cyberbullying, Ontario has the Safe Schools Act. The Safe Schools Act specifically includes online behaviour for which students may be suspended or expelled. In addition, education legislation typically includes definitions of cyberbullying.
  • Alberta’s Education Act has a bystander requirement – students who witness cyberbullying must report it or face potential consequences.

Canadian jurisprudence: The jurisprudence has also progressed with respect to cyberbullying. For example, the Ontario Superior Court of Justice recognized a new civil law tort called “public disclosure of embarrassing private facts” in 2016. The new tort would recognize that certain online conduct could have a negative impact on the physical and mental health of a plaintiff, as well as potential downstream effects on a plaintiff’s professional life.

International legislation: Governments around the globe have targeted cyberbullying through legislation, though each has a unique method of dealing with online conduct. For example, section 230 of the Communications Decency Act in the U.S. creates immunity for “providers of interactive computer services”. This provision has been criticized as eliminating potential redress for victims of cyberbullying, especially those who cannot identify the aggressor. In addition, US courts have held that the immunity does not incentivise social media platforms to create policies and tools to deter cyberbullying.

Social media platforms and other online communications

In deterring cyberbullying on social media platforms, social media companies must balance free speech with protection of their users from privacy breaches and social harm–which is part of the reason that Canadian courts have been reluctant to create a third party liability for these types of companies. To balance these interests, some social media companies have bullying policies and make tools available to users to report and block inappropriate content.

Aside from social media apps, other forums such as video streaming sites and video games also provide opportunities for cyberbullying to take place. These fora can sometimes rise significant concerns, as the malicious content is often transient and is more difficult to track and prove subsequently. For example, it would be much more difficult for schools to monitor and/or obtain evidence of behaviour that occurs on a microphone during a multi-player online game.

Conclusion

Cyberbullying is an issue that is best addressed through many avenues. Currently, liability is limited to the perpetrator of the cyberbullying. Given the growing rate of cyberbullying that occurs on online forums and the reputational risk to social media companies who host those platforms, it is in the interests of both the users and the company to have meaningful cyberbullying policies, reporting tools, and meaningful repercussions available to those who cyberbully others.