Cyberbullying was in the news last week with Justice Minister Peter MacKay indicating that Bill C-13 could pass by the spring. The reaction to the bill – the government’s lawful access/cyberbullying legislation – has generally included criticism over the inclusion of lawful access provisions from Bill C-30 along with assurances that the cyberbullying provisions are important and worthy of support (though experts in the field doubt whether it will stop online taunting). I discuss the dangers associated with Bill C-13 in this interview on TVO’s The Agenda.
Comments from Conservative MPs unsurprisingly point to the need to protect children from cyberbullying. For example, Conservative MP John Carmichael told the House of Commons:
Mr. Speaker, I am a parent and a grandparent. I have concerns about my children in this day and age of technology. I have watched my three-year-old grandson navigate through an iPad, and I do not have any idea how he moves through the technology. Clearly, in today’s world there is so much access to different types of attacks on our children. Obviously, entertainment is one thing that we want our children to have, but I think we also have to be wise in what we allow them to watch or see.
Clearly, there are elements who take advantage of our children and our grandchildren in this world. We have all heard horrible stories. A member spoke earlier about a resident in his community who committed suicide, with no hope, feeling perhaps that her life had been ruined. This bill brings hope to all Canadians. It brings us an opportunity to put regulation and legislation in place that will protect our children and our grandchildren from those who would take advantage of them. I think it does exactly what it was intended to do when the Minister of Justice introduced it.
Beyond protecting children and grandchildren – something we all agree upon – the Conservatives frequently point to a June 2013 report on cyberbullying from federal and provincial justice ministers as the basis for Bill C-13.
Yet despite the claims that Bill C-13 is needed to address cyberbullying, the reality is that report found that the Criminal Code already addresses most cyberbullying issues. As the report notes:
There is no specific provision in the Criminal Code for cyberbullying, or even bullying more generally. Bullying captures a wide range of behaviour, most of which does not amount to criminal conduct, for example, name calling, teasing, belittling and social exclusion. However, when the bullying behaviour reaches the level of criminal conduct, the Criminal Code contains several provisions that can address this behaviour. Depending on the nature of the activity involved, a number of Criminal Code offences may apply to instances of bullying or cyberbullying, 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);
- defamatory libel (sections 298-301);
- incitement of hatred (section 319); and,
- child pornography offences (section 163.1);
The report identifies several additional provisions that may be applicable. The resulting substantive recommendations are very limited, namely an expansion of the harassment provisions and removing costs in libel cases.
The report also recommends a new provision on the non-consensual distribution of intimate images, however, it acknowledges that this issue extends far beyond cyberbullying and “there is limited data on the extent and the nature of this activity.” Moreover, the report notes the Criminal Code can be used in some cases: images of persons under the age of 18 would qualify under the child pornography rules, while provisions on voyeurism, obscene publication, criminal harassment, and defamatory libel may also be used. As David Fraser notes, the failure of high profile cyberbullying cases in Canada lies with police and prosecutorial failure to use the laws that were readily available, not in the absence of laws that can be used to combat cyberbullying.