Cyberbullying creating difficult questions for legal system

Online discourse is a challenging frontier for courts trying to apply old laws for a new technological world. Cyberbullying can have tragic results, but deciding on the best way to address it has divided both lawmakers and advocates.

Victims' advocates calling for new cyberbullying laws, but pinning down broad term difficult

The death of Amanda Todd, who committed suicide in 2012 after being harassed online, helped prompt lawmakers to try to take action against cyberbullying. But legal change has been slow and plagued with several difficulties. (CBC)

When B.C. native Amanda Todd took her own life in 2012 after being harassed online, a video she released detailing her experience caused widespread concern and raised questions as to how police handle the online world.

Her tragedy shared similarities with another one that raised public outcry. Rehtaeh Parsons of Nova Scotia attempted suicide after being cyberbullied and died soon afterward in 2013, prompting demands for a substantive response to cyberbullying.

Politicians have tried to respond, but their efforts have run into roadblocks and conflict has arisen over how to tackle cyberbullying without breaching people's freedom of expression.

Such was the case when Nova Scotia's Cyber-Safety Act — the first law in Canada aimed at cyberbullying — was struck down in December by the Supreme Court of Nova Scotia for infringing on the Canadian Charter of Rights and Freedoms.

The definition of the cyberbullying in the act was called a "colossal failure" in the ruling because it covered too many forms of expression beyond what was intended.

Halifax-based privacy lawyer David Fraser, who made the charter challenge against the act, said the difficulty of pushing forward cyberbullying law is keeping the definition precise.

"The main challenge is actually defining what is cyberbullying because cyberbullying covers a huge range of behaviours," said Fraser.

What should cyberbullying mean?

Nova Scotia's Cyber-Safety Act was created in the weeks following Parsons's death and allowed victims to apply for protection orders to place restrictions on cyberbullies.

But the broad definition of cyberbullying in the act garnered it immediate opposition and was eventually grounds for striking the law down. 

The death of Rehtaeh Parsons prompted the Nova Scotia government to create the Cyber-Safety Act, Canada's first law aimed specifically at cyberbullying. The law was later struck down, with the Supreme Court of Nova Scotia saying it infringed on charter rights. (Canadian Press)

Cara Zwibel, a director at the Canadian Civil Liberties Association, opposed the act for its infringements on Canadian freedoms.

She said lawmakers need to be more focused about cyberbullying by thinking specifically of what harms they seek to address and by "coming up with a relatively clear and a relatively narrow definition of what constitutes bullying."

​Fraser said more experts need to be consulted to deterimine a clear definition of cyberbullying, something that did not happen when the act was originally drafted.

Despite the problems associated with the Cyber-Safety Act, there are those who would like to see parts of it imitated elsewhere.

Privacy lawyer David Fraser says lawmakers need to bring together experts to craft law around cyberbullying and decide how the term should be defined legally. (CBC)

Kendra Milne, director of law reform for West Coast LEAF — a group that advocates for law reform in support of women's rights — agreed the Nova Scotia law was too broad.

But she added the law's protection orders could work well and other provinces should try to adopt similar laws with better definitions of cyberbullying.

Criminal harassment on Twitter

With new laws not forthcoming for many aspects of cyberbullying, courts have relied on extending the boundries of older laws. 

One such instance was in the Ontario trial of Gregory Alan Elliott, who was found not guilty of criminally harassing online feminists Stephanie Guthrie and Heather Reilly on Twitter on Jan. 22

In a landmark ruling in January, Gregory Alan Elliot was found not guilty in what is considered Canada's first criminal harassment trial involved Twitter. (CBC)

The ruling said that the threshold of criminal harassment — an objectively reasonable fear for one's safety — had not been met in the case.

A recent CBC investigation also highlighted the limitations of criminal harassment. While the RCMP recommended the charge against B.C. native Patrick Fox, who aims to 'destroy' his ex-wife Desiree Capuano with a revenge website, the Crown opted not to proceed. A spokesperson for the Crown said they couldn't conclude the threshold for criminal harassment was being met, in part because Capuano lives in Arizona.

Fraser said the definition of criminal harassment could be examined by lawmakers to better address online behaviour.

"I do think that maybe we need to be thinking about tweaking the [criminal] harassment [law]," he said. "Maybe there should be something relating to seriously psychological injury or harm or intimidation."

Desiree Capuano, left, has been the subject of an extended online-harassment effort from her ex-husband Patrick Fox. (Desiree Capuano/Facebook)

Milne disagrees with the idea, saying she thinks the court has underlying biases and assumptions about reasonable fear that need to change more than criminal harassment law itself. 

"The problem is understanding what is likely or when it is reasonable for someone to be fearful for themselves," said Milne. "It's more a matter of shifting stereotypes and assumptions in the legal system and in society at large about what that means when people can and do reasonably feel fearful."

Beyond legal measures

Beyond Canada, lawmakers are also trying to find legal means to handle cyberbullying.

On Feb. 10, game developer Zoe Quinn decided to drop her U.S. lawsuit against ex-boyfriend Eron Gjoni, a case stemming from him allegedly leading online harassment against her.

Zoe Quinn recently decided to drop her lawsuit against her ex-boyfriend, citing exhaustion over dealing with the online harassment she was getting by continuing the case. (BBC News/YouTube)
In an online statement, she said she no longer wanted to gamble on what precedent would be established in her case, which was held in a Boston municipal court.

Despite efforts to create laws on cyberbullying, there is division on whether that is a good way to address the problem.

"The law can be a pretty blunt instrument," said Zwibel. "It's not necessarily able to capture all the nuance that's involved in communication."
Since the death of her daughter, who was harassed heavily online, Carol Todd has become a public speaker, advocating against cyberbullying and promoting online safety.

Vancouver-native Carol Todd said she knows how limited the law can be with cyberbullying. After the death of her daughter Amanda, Todd has become an advocate and speaker against online harassment.

Todd said education is crucial to combat cyberbullying, but acknowledges the place laws have in the battle.

"You can have lawmakers on one hand making the laws, but you need to have the resources and education at the other end."

Several provinces have started to take measures towards addressing cyberbullying. A joint report released from B.C.'s child representative and privacy commissioner outlines a call for the provincial government to make a cyberbullying strategy and new law came into effect in Manitoba in January allowing victims of revenge porn to sue perpetrators.

Nothing's going to happen overnight. I'm hoping that come 10 years down the road we'll see a whole different mind shift.- Carol Todd, anti-cyberbullying advocate

But Todd said she would like to see the federal government take on a bigger role and address more aspects of cyberbullying beyond the nonconsensual distribution of intimate images, which was criminalized under Bill C-13.

"Nothing's going to happen overnight," said Todd. "I'm hoping that, come 10 years down the road, we'll see a whole different mind shift. It's shifting — but all shifts are slow."

CBC Forum: How should lawmakers address cyberbullying?

Can't see the forum? Click here.