cyber-bullying Archives - LawNow Magazine

Cyberbullying or Criminal Conduct?

July 1, 2013 By Melissa Luhtanen J.D.

Facebook, Instagram, Twitter, texting or similar means of communicating over the Internet have given new challenges to teachers, parents and most of all, youth. We tell youth to be cautious, to use their common sense, to not talk to strangers and to keep their personal information private. And yet these precautions, even when followed, do not always protect youth from cyberbullying. Cyberbullying is a serious issue in schools and in the after-school life of children as young as six years old.

However, part of the problem in preventing, punishing and educating on cyberbullying is the difficulty in finding a common definition of “cyberbullying”, and the very real problem of downplaying Criminal Code offences as bullying.

In the past year the media has reported on at least two high profile cases that were labeled “cyberbullying”, and that received mainstream media attention across Canada. One was the case of Amanda Todd, from Port Coquitlam, British Columbia, who killed herself after being “cyber- bullied”. Amanda Todd posted an eight-minute video where she explained, through flash cards how she and her friends were talking on a web-cam with another person. She was 12 years old and she playfully flashed her chest. The person on the other side of the web-cam turned out to be a grown man and not a young boy. He posted the image of her bare chest online. Then he stalked Amanda Todd every time she moved to a new school and sent out the video to her classmates. Bullies at school taunted Amanda Todd, with names such as “porn star”. She hung herself in 2012, at age 15.

Rehtaeh Parsons was a Halifax teenager who also killed herself after events that were named “cyberbullying”. Rehtaeh Parsons was allegedly gang raped. It has been reported that one of the boys took a photo of her being raped and distributed it to her classmates. The RCMP did not lay charges at the time. After the photo was distributed online, boys started texting and Facebooking Rehtaeh Parson asking her to have sex with them. She was bullied because of the pictures that were distributed online. Rehtaeh Parsons hung herself in April 2013.

The Nova Scotia Task Force reviewed many definitions of “bullying” and “cyberbullying” and recommended that the following definition be used for education and legislation in the province:¹

Bullying is typically a repeated behaviour that is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person’s body, feelings, self-esteem, reputation or property.

Bullying can be direct or indirect, and can take place by written, verbal, physical or electronic means, or any other form of expression.

Cyberbullying (also referred to as electronic bullying) is a form of bullying, and occurs through the use of technology. This can include the use of a computer or other electronic devices, using social networks, text messaging, instant messaging, websites, e-mail or other electronic means.

A person participates in bullying if he or she directly carries out the behaviour or assists or encourages the behaviour in any way.

The cases of Amanda Todd and Rehtaeh Parsons both have elements described in this definition: repeated behaviour, intended to cause fear and distress, harm to the “person’s body, feelings, self-esteem, reputation”. The harassment in Amanda Todd’s case took place electronically. In Rehtaeh Parsons’ case there was the use of technology to distribute pictures of an alleged rape. In both cases other people encouraged the behaviour. On its face, the actions were akin to cyberbullying and were treated as such in the media, and by those who commented on the horrible actions that led to these two girls taking their own lives.

However, on closer examination these cases are much more complicated than cyberbullying. Amanda Todd was being stalked and harassed by a man who lived somewhere in the United States. He lured her into flashing her naked chest and then took a video, which he posted online. These are all criminal offences under the Criminal Code: stalking (Criminal harassment s.264), Internet luring (s.172.1), and distribution of child pornography (s.163.1(3)). Rehtaeh Parsons said that she was raped which is a sexual assault (s.265). Afterwards, pictures of the events were distributed online, arguably also a criminal offence, which would possibly be dealt with under the Youth Criminal Justice Act if those distributing were under the age of 18 years.

We should not be appalled at cyberbullying only when it results in such heinous acts that they must be described as Criminal Code offences. Cyberbullying deeply affects the child who is texted mean messages about her appearance, who is told by text that she is uninvited to a social gathering, or whose picture is posted online and laughed at. Cyberbullying is something that affects a youth’s ability to learn, grow and enjoy school, not something that results in criminal actions against her body or fear of being stalked.

Youth must be encouraged to report cyberbullying. If we continue to conflate cyberbullying with Internet luring, sexual assault and child pornography, youth will not report bullying that takes place online. Reporting cyberbullying is a key component to combating this issue.

In 2010, a 15-year-old girl (A.B.) did report a case of cyberbullying. A.B. discovered that someone had signed up a Facebook account using A.B.’s picture and a slightly different name. A.B.’s picture was posted on the Facebook account with unflattering sexual comments about her appearance. A.B. wanted to find out the identity of the user who had started the Facebook account and posted her picture. However, A.B. wanted to proceed with the case anonymously and also asked for a publication ban. The case went to the Supreme Court of Canada (A.B. v. Bragg Communications Inc. 2012 SCC 46) to consider whether A.B. had demonstrated that there was a “real and substantial harm to her which justified restricting access to the media” (para 7). The SCC said:

If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully. [para 27]

A.B. was allowed to proceed anonymously, but the publication ban on non-identifying information was not granted since A.B.’s identity would be protected by being anonymous.

Having the courage to make a cyberbullying claim is just one aspect of addressing this issue in a thoughtful manner that will encourage youth to report bullying and also support peers who are being bullied. Conflating the issue of cyberbullying with sexual assault, child pornography and other Criminal Code offences undermines the efforts to address problems that are, at the core, cyberbullying. Distributing naked pictures of girls online is not cyberbullying just because it uses technology. It is a criminal offence that warrants a response by Police and RCMP.

Both issues are important and highlight grave challenges for parents and youth. Lawmakers must ensure that the Criminal Code has measures to address the horrible actions of stalkers and pedophiles who use the Internet to lure children. Schools, school boards, communities and governments have a responsibility to address and educate children and youth about cyberbullying, by children against children, in legislation, policies and procedures.

1 Respectful and Responsible Relationships: There’s No App for That: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying (2012) at p. 42.

An Overview of Anti-bullying Legislation and Alternatives in Canada

July 1, 2013 By Lindsey Panjvani

Very few days seem to go by, of late, without Canadians hearing about the alarming consequence of bullying in some form or another. This is particularly true in relation to children and youth. A number of high profile cases have garnered much discussion over the past few years, the latest of which is the tragic death of Rehtaeh Parsons. Studies and reports, campaigns and projects, and even the occasional uplifting triumphs, too, all do their part to keep this topic in the public eye.

According to Public Safety Canada, bullying is “characterized by acts of intentional harm, repeated over-time, in a relationship where an imbalance of power exists. It includes physical actions (punching, kicking, biting), verbal actions (threats, name calling, insults, racial or sexual comments), and social exclusion (spreading rumours, ignoring, gossiping, excluding).” Notably, a 2010 report for the Public Health Agency of Canada, on the Health of Canada’s Young People, found approximately 40% of adolescents to be both bullies and victims of bullying. And for all concerned, whether victim, bully, or both, the consequences can be many and long-lasting.

For those engaged in bullying, there may also be legal repercussions. While there is no offense termed bullying under the Canadian Criminal Code per se, many behaviours or incidents characterized as bullying fit the definition of criminal offenses. These include, for example, Criminal Harassment (CCC 264), Uttering Threats (CCC 264.1), Assault (CCC 265 & 266), and Sexual Assault (CCC 271), with perpetrators risking youth or adult sentencing depending on the circumstances of the crime(s). For more on this topic, see the John Howard Society for an accessible look at bullying and the law.

On a provincial level, a number of different approaches have been taken. At present, only some of the provinces have anti-bullying legislation in place, with mixed opinions as to their efficacy, while the other provinces and territories have opted to address bullying in different ways. What follows are recent legislative changes specific to bullying, as well as a quick look at the approaches taken by the others.

In Manitoba, Bill 18, which came into effect on April 15, 2012, amended The Public Schools Act specific to bullying and respect for human diversity. The term ‘bullying’ is defined, and school boards of publicly-funded non-religious and religious schools must both expand their policies about the appropriate use of the Internet and establish a respect for human diversity policy.

In Nova Scotia, Bill 30, the Promotion of Respectful and Responsible Relationships Act was introduced in April and received assent on May 17, 2012 shortly after the release of a task force report on bullying. The new Act resulted in bullying and cyberbullying being specifically addressed in the Education Act and the creation of a provincial school code of conduct. Bullying was further addressed on April 25, 2013 with the introduction of Bill 61, Cyber-safety Act to further address cyberbullying in particular.

New Brunswick’s Education Act was amended to address bullying and cyberbullying via Bill 45 on June 13, 2012. With an emphasis on “prevention, reporting, investigating and taking action,” bullying and cyberbullying were highlighted; the roles and responsibilities of principals, educators, parents, students and parent school support committees were clarified, along with protocols for discipline and intervention; and increased reporting at various levels was mandated.

On June 15, 2012, Bill 56 received assented in Quebec, amending the Education Act and the Act Respecting Private Education in relation to bullying and violence. Through these amendments, terms and responsibilities were defined, including the obligation of all public and private educational institutions to adopt and implement an anti-bullying and anti-violence plan.

Shortly thereafter, Ontario’s Education Act was amended on June 19, 2012 by Bill 13 with respect to bullying and other matters. New legal obligations exist for school boards and schools to prevent bullying; tougher consequences will be meted out for bullying; and students wanting to promote understanding and respect for all will be more so supported.

In Alberta, bullying is taken up in the Education Act, which received Royal Assent on December 10, 2012, and is specifically addressed by Bill 3. The term ‘bullying’ is defined; school boards will be required to establish a student code of conduct; and the National Bullying Awareness Week will be formalized as Bullying Awareness and Prevention Week.

Of the remaining provinces and territories, most have strategies in place to address bullying, and some have even tabled motions to consider anti-bullying legislation, too. In January 2008, Yukon passed the Safe and Caring Schools Policy, in which bullying in defined and clarification is provided around roles and responsibilities, standards and policies. British Columbia introduced ERASE Bullying (Expect Respect and a Safe Education) – a prevention and intervention strategy building on the province’s Safe, Caring and Orderly Schools Strategy – in June 2012. Saskatchewan announced an anti-bullying strategy in February 2005, which ties into the province’s Caring and Respectful Schools initiative. A year later, in May 2006, Newfoundland and Labrador established a provincial Safe and Caring Schools Policy. Nunavut, though, has neither legislation nor a broad strategy in place specific to bullying.

Finally, Prince Edward Island is presently considering legislation, just over a year after a motion was passed in April 2012 to encourage government in the adoption of anti-bullying legislation. Shortly thereafter, the Northwest Territories also passed a motion, in June 2012, recommending the establishment of a territory-wide anti-bullying campaign and the review of anti-bullying legislation across Canada.

Legal Responses to Cyberbullying: The ‘Unsupervised Public Playground’

July 1, 2013 By Teresa Haykowski

Should a student be suspended or expelled for posting a video on the Internet that mercilessly humiliates another student? Should a school principal be able to search a student’s cellphone much like a school locker? What should happen to those students who intentionally post information about a fellow student that causes them to contemplate suicide?

Such questions arise following the tragic recent death of Rahtaeh Parsons, a 17-year-old Nova Scotia girl who died in April 2013, after hanging herself. The suicide was in response to a picture, shared around Rahtaeh Parsons’s school, of an alleged sexual assault involving her.

This deeply sad incident occurred on the heels of the suicide of 15-year-old B.C. teenager Amanda Todd, who experienced months of cyberbullying which started after pictures were posted of her on the Internet. Shortly before Amanda took her young life, she posted a YouTube video documenting her suffering.

What is Cyberbullying?

Cyberbullying is generally known as electronic communication intended to, or that could reasonably be expected to, cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation. It often manifests itself by students, the effects of which are experienced at school. Cyberbullying can include:

creating a web page or a blog in which a student assumes the identity of another student;
impersonating another student as the author of content or messages posted on the Internet; and
communicating material electronically to more than one student or posting material on a website that may be accessed by one or more students.

It goes without saying that children can suffer harm through cyberbullying, including loss of self-esteem, anxiety, fear and school drop-outs. Moreover, victims of cyberbullying are almost twice as likely to report that they attempted suicide compared to young people who have not been bullied. For more information about this, we recommend Nova Scotia’s Task Force Report on Bullying called Respectful and Responsible Relationships: There’s No App for That.

As this Report notes, the anonymity available to cyberbullies makes it easier to bully because it removes the traditional power imbalance between the bully and victim, and makes it difficult to prove the identity of the perpetrator. Anonymity allows young people, who might not otherwise engage in bullying, the opportunity to do so with less chance of repercussion. It is easier to be anonymously bold electronically than to be bold directly to someone’s face. (Please see YouTube’s Talent Show, Cyberbullying Prevention Commercial.)

Legislative Responses to Cyberbullying

The Todd and Parsons incidents thrust the issue of cyberbullying into the legislative spotlight. British Columbia, Alberta, Ontario and Nova Scotia, among other provinces, provided legislative responses to cyberbullying to assist victims and their families, and to ensure that school administrators have the tools they need to deal with cyberbullying on and off school property.

Nova Scotia

In April 2013, Nova Scotia introduced the Cyberbullying Safety Act which will create Canada’s first cyber-investigative unit and allow families and victims to get protection orders from the court to ban a person from contacting the victim, talking about them online, or using any form of electronic communication. The Act provides for significant search-and-seizure powers permitting an investigative squad (without notice to the alleged cyberbully) to enter homes, remove computers and cellphones, and obtain records of everything an individual has done on the Internet including obtaining all texts that the purported cyberbully sent and received. The Act also provides that victims can sue cyberbullies and, if the cyberbully is a minor, their parents could be responsible for the damages. School principals in Nova Scotia will also have clear authority to act against bullying and cyberbullying on or off school grounds.

Ontario

Ontario’s Accepting Schools Act requires school boards and schools to prevent bullying, mete out tougher punishment for bullying and support students who want to promote understanding and respect for all, including requiring school boards to:

work with the school community to develop a bullying prevention and intervention plan and make the plan public;
investigate reported incidents of bullying;
support students who have been bullied, who have witnessed bullying and who have bullied;
inform parents about bullying incidents involving their children and discuss the available supports; and
issue tougher consequences for bullying and hate-motivated actions up to, and including, expulsion.

British Columbia

British Columbia introduced its Erase Bullying strategy in June 2012 and dedicated $2 million to train educators and others to recognize and address threats. In November 2012, at B.C.’s request, a national working group discussed the issue of cyberbullying and considered whether the Criminal Code should be amended to address implications associated with cyberbullying.

Alberta

As part of its major revision to the current School Act, Alberta added a definition of ‘bullying’ in the new Education Act, which is expected to become law in 2015. Some have suggested that the new ‘bullying’ provisions in the Education Act are some of the strongest in the country.

The proposed Education Act defines “bullying” as repeated and hostile or demeaning behaviour by an individual in a school community which 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 describes what is expected of Alberta students when it comes to bullying: they are 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. Worthy of note is that the Act creates a positive obligation on students to report bullying.

It also makes it an obligation on Alberta school boards to offer a “welcoming, caring, respectful and safe learning environment that includes the establishment of a code of conduct for students that addresses bullying behaviour.”

The Proposed Legislative Responses are not a Full Answer to Cyberbullying

While the proposed legislative reforms are not expected to stop student cyberbullying, the reforms are intended to provide tools to courts, the justice system, school administrators, victims and their families to deal with cyberbullying and its effect in schools. It is a step in the right direction. The legislation sends a strong message about cyberbullying – this type of behaviour is not acceptable in our society.

Lessons can also be learned from the American legislative experience. In June 2010 the New York Times ran a opinion article about New York’s legislative requirement that schools implement an anti-bullying curriculum, investigate incidents of bullying and report certain cases to the police. As noted in Education Law Blog, the New York article explores how cyberbullying is being treated in the U.S. by judges and lawyers, schools, victims and their families. One issue considered is that cyberbullying raises the common question for schools about the limits of their jurisdiction and whether (and to what extent) schools are responsible for off-campus student conduct. Under Alberta’s proposed Education Act, cyberbullying extends beyond the school walls and gives authority to school administrators to address cyberbullying that occurs off school property.

While laws alone may not create kinder communities or teach children how to get along, the current legislative reforms empower school boards to appropriately address cyberbullying and send a strong message to students and their parents – cyberbullying is unacceptable, it will be addressed and will not be tolerated.

If cyberbullying is an issue your child is experiencing, we recommend you talk to your school principal and police (depending on the circumstances). You may also wish to consult Need Help Now, which is a website designed to instruct teens and their parents on how to deal with cyberbullying and how to remove pictures from the Internet.

Unmasking Bullies on the Internet

July 1, 2013 By Peter Bowal, Andrea Lai and Hansen Wong

Introduction

Most of us have heard of cyberbullying and the dreadful impact it has had on young people, even driving some of them to suicide. The incidence of bullying online is likely far greater than the average Canadian might expect. As a university professor, I (Bowal) receive menacing and profane emails from anonymous former students presumably unhappy about a course or grade, or perhaps one lecture.

It is easy to set up a free, bogus web-based alias email account and spew forth. A recent study showed that teachers as well as children are the victims of online bullying, with parents responsible for a quarter of the abuse. Forums, emails, blogs, social media, YouTube, complaint websites (such as ComplaintsBoard.com and PissedConsumer.com) and ratings websites (such as TripAdvisor) all provide channels for anonymous expression, and therefore for harassment and bullying of others with apparent impunity.

Brian Burke, the former general manager and president of the Toronto Maple Leafs, recently sued 18 anonymous online commentators, including online aliases such Ncognito, Slobberface and Sir Psycho Sexy. He is alleging defamation after they accused him of an extramarital affair with a named woman.

Most online commentary outlets require registration with a user name and password and agreement to their standards. In 2010, a Halifax weekly newspaper published an article about racism in the Halifax Regional Fire Service. This was followed by dozens of comments posted on the newspaper’s website. The Fire Chief and Deputy Chief were publicly accused of racism, cronyism and incompetence by seven anonymous commentators who hid behind names such as “The truth” and “in the know.” The two firemen said they could only defend themselves once they knew who the commentators were. In the 2010 case of Mosher v. Coast Publishing Ltd, the Nova Scotia Supreme Court ordered the newspaper and two Internet service providers to release the IP addresses and login information that could identify them. The seven commentators were unmasked and became defendants in a defamation suit.

Similarly, a New Brunswick judge ordered a Moncton newspaper to identify an anonymous commentator who allegedly defamed Daryl Doucette, another firefighter. Doucette had written a short Letter to the Editor favouring occasional high speeds for emergency vehicles. The commentator, under the name “Anonymous Anonymous,” made two posts on the newspaper’s online comment section that offended Doucette, calling him a “cowboy” of “goon mentality” who should lose his job. The identity of the poster was ordered disclosed.

Not all are firefighter cases. The President of York University in 2009 was accused of academic fraud in the appointment of a new dean, by an anonymous group of individual(s) identified as “York Faculty Concerned about the Future of York University” (“YFCFYU”) in several e-mails. The University obtained a court order against Google, since the email originated from a @gmail.com account, and Bell and Rogers to identify the individual(s) behind the email account.

What motivates cyberbullies to cruelty and harassment online may be their misguided sense of security in tormenting others from an anonymous, lawless realm sitting alone in front of their computers. They mistakenly believe that they cannot be traced and identified but, once they are identified, they are subject to the criminal and civil law that applies to that nasty, cowardly behaviour. This article describes the legal procedure to unmask the cyberbully for a civil remedy such as a restraining or no-contact order, or compensation on the basis of an intentional tort such as the intentional infliction of mental and emotional suffering or defamation.

The Norwich Order

In the early 1970s, Norwich Pharmacal believed a company was illegally manufacturing its product by infringing its patent abroad and then importing the counterfeit product into Britain. All Norwich could do was demand that the government Customs and Excise Commissioners identify the importers so Norwich could stop the illegal production and importation. Ultimately, the House of Lords ruled that where a person becomes involved in the wrongful acts of others, even innocently, that person has a legal duty to fully disclose the identity of the wrongdoer. Norwich Pharmacal Co. v. Commissioners of Customs & Excise, [1974] A.C. 133 (H.L.)

This eponymous Norwich order affirms a legal right to discover and identify wrongdoers and defendants before a lawsuit has been commenced. It is an order allowing one to discover some fact by compelling a third party (such as a newspaper or ISP) to reveal precise information prior to litigation. The Rules of Court in each province authorize the making of such an application. The application to the Queen’s Bench of Alberta is covered by Rule 5.2(1), which states that information may be ordered disclosed when the answer “could be reasonably expected to significantly help or determine one or more of the issues raised in the pleadings.” Other provinces’ rules are more specific, such as New Brunswick’s 32.12 where discovery is granted where “the applicant, having made reasonable inquiries, has been unable to identify the intended defendant.”

Norwich orders may be powerful tools to unmask the identity of anonymous abusive online bullies. It has been used in earlier cases such as Isofoton S.A. v. Toronto Dominion Bank, 2007 CANLII 14626 to prosecute bank fraud, or discover innocent individuals who may have unwittingly aided in bank fraud. The Insofoton case outlined five elements that should be considered by any court before granting a Norwich order:

there should be evidence of a valid, bona fide claim or reasonable claim that is not frivolous or vexatious;
the applicant must establish that the third party from whom the information is sought is involved in the wrongful act, even innocently. For example, a bank in receipt of fraudulent funds is an innocently involved third party;
the third party must be the only practicable source of information. The victim is not required to approach the alleged wrongdoer for the information. Often, media outlets and ISPs are the only source of information on who is the person behind online statements. In that way, the Norwich order will be granted only as a last resort, consistent with its status as an equitable remedy;
in appropriate cases, the applicant should indemnify the third party for any costs associated with complying with the order; and
the court will consider the interests of justice through the competing interests and weigh the benefits of revealing the information against the interest in maintaining confidentiality. There may be serious prejudice to the wrongdoer to release his financial records without his knowledge or consent. On the other hand, “outing” an obnoxious Internet bully likely favours disclosure over his privacy rights.

The Norwich order is only a form of a subpoena. It does not itself prove any wrongdoing has occurred. It is a procedural device to allow someone with a prima facie claim to obtain more information about wrongdoing from a third party. It can be made ex parte, which is to say, without notice to and without submissions from the other side. Several such orders may be required – one from the online source upon which the communication and a second from the service provider.

The primary objective of the federal Personal Information Protection and Electronic Documents Act (PIPEDA) (SC 2000.c 5), enacted in 2000, is individual data privacy protection. Any organization with access to personal information may not disclose that personal information without the individual’s consent, an exception being a court subpoena. A Norwich order will override an individual’s PIPEDA right to privacy.

We see that privacy is not an absolute right and court orders can, and frequent do, trump privacy rights to confidential information, even for personal financial records, and the unveiling of who did or said what, through third-party intermediaries. Norwich orders are often granted in conjunction with other similar litigation-affiliated equitable remedies: Mareva injunctions (to identify and locate assets), Anton Pillar orders (to identify and locate evidence for preservation) and Bankers’ Trust orders (to trace and preserve assets in which the wronged party has a proprietary interest).

The underlying principle is one of equity. Victims applying for the order have an equitable right to information. Third parties who even innocently, unknowingly assist in the carrying out of a wrong, such as a financial institution involved in the processing of an allegedly fraudulent transaction, or an ISP whose network publishes threats, harassment or defamation, has an equitable duty to assist the victim to pursuing his or her legal rights. Often these third parties will not voluntarily disclose the confidential information but neither will they oppose the Norwich order.

It is a discretionary and unusual remedy. The applicant for a Norwich order should demonstrate to the judge that the disclosure sought is necessary in order for a prospective action to proceed, although one does not have to guarantee a lawsuit will follow from the disclosure. There are several cases where the identifying information is obtained and the victim settles with, imposes other forms of discipline (such as at work) or merely warns the perpetrator, without launching a formal lawsuit.

Conclusion

The Internet, and now Web 2.0, allows for unlimited instantaneous and free online interaction between users, but it is also a new platform and pulpit for the bully in anonymity. We know, for example, posters to online forums usually post under a pseudonym which may decrease their sense of accountability. The online realm is an immediately and dangerously public place. Anonymous email or Facebook accounts, for example, are easily created within minutes. They can be used to threaten the security of others or destroy reputations with posted pictures and videos. Reputations and lives can be injured by bullies faster on the Internet and social media than through any other medium. Malicious Internet behaviour should be penalized and deterred before it leads to tragic consequences.

Legal Information and Resources on Bullying

November 15, 2012 By CPLEA STAFF

In honour of Bullying Awareness Week (Nov 12 – 17, 2012) let’s look at some resources surrounding bullying.

Bullying is an important topic to discuss in schools. The August/September 2002 issue of LawNow featured a lesson plan on bullying. It includes a case study, guidelines for a mock trial, and a role playing exercise. For more resources for teachers on bullying, you can check out the keyword listing on LawCentral Schools.

The Today’s Trial from this same issue of LawNow explores the included case (R. v. D.W. 2002 BCPC 96) further. Two teens were charged with uttering threats. The teen they threatened had killed herself. This case reflects how bullying not only affects the person being bullied, but has a larger impact on a community.

Bullying is made even more complex in the digital age. The latest Bench Press looks at Children and Cyber-bullying. The case involves a teenage girl who was bullied through Facebook. Another LawNow article, Cyber Bullying: Bullying through Technology explains the legal repercussions of cyber bullying and some tips for stopping and responding to a cyber bully.

What happens when your boss is the bully? LawNow’s Human Rights Law column looks at Bully Bosses: When Harassment is Not Discrimination. The article describes some of the legal remedies that employees have if they are verbally or non-verbally bullied by supervisors or co-workers.

For bullying resources in your province, you can check out the many listings on LawCentral Canada.

Cyber Bullying: Bullying Through Technology

November 15, 2012 By Melissa Luhtanen J.D. and Lisa Ellis

Many of today’s new technologies are designed for the sole purpose of facilitating communication between individuals. Not only do these technologies enable communication between friends and family, but a large part of their appeal is that they present the opportunity to meet new people. Among the more popular ways of meeting others online are instant messaging, chat rooms, Facebook and other websites specifically designed for the purpose of meeting and connecting with those who share similar interests. With the click of a mouse, today’s young people have access to the world, and are increasingly more likely to create friendships, and even relationships, online with individuals they have never met in person.

On one hand, today’s new technologies have made communication much easier. Young people have free rein to make new friends with individuals who share similar interests. They can express themselves by sharing thoughts and ideas with like-minded youth. This is especially good for youth who live in rural areas, which have fewer services and a smaller youth community. The potential for increased communication represents freedom – a world generally unrestricted by the piercing eyes of parents, and an exciting world where anything is possible and everyone is no further away than the click of a mouse. Today’s new technologies save time and are instantly gratifying – no more waiting weeks or days to hear back from a pen pal, or even minutes to receive an email. Today’s new technologies feature instantaneous or “real time” communication; a feature very attractive to young people. Youth can “chat” online with multiple people simultaneously, have a conversation with a number of parties, or even send messages to thousands of people. This communication is generally at a low cost, if not entirely free. The opportunity to find other individuals who share similar interests is a big draw – and on the Internet – one can find others who share even the most obscure interests.

More Internet use leads to more opportunities for bullies

There is no denying that technology is playing an increasingly important role in the lives of young people. According to the 2005 Young Canadians in a Wired World study of Grades 9 to 11 students, young people are avid users of technology. Young Canadians are more connected than ever before. Ninety-four percent of young people have access to the Internet in their homes, while 23% of young people have their own cell phones, often equipped with text messaging capabilities and digital cameras. Youth use the Internet to extend their existing social networks and develop new ones. Twenty-one percent of students in Grades 7 to 11 have reported meeting an Internet friend online and 72% said that it was a good experience.1

However, for some young people, the Net is a vehicle for bullying and sexual harassment. The Internet offers a place where some users feel anonymous. One study found that 59% of users have assumed a different identity. Of those, 17% suggested that they pretended to be someone else so they could “act mean to people and not get into trouble”.2

The Internet is a growing and popular tool for bullies. Cyber bullying occurs when a bully uses email, websites, or text messaging to harass other people. Cyber bullying can be done directly to an individual by sending them insults or threats via email, instant messaging, or text messaging. Using all of these technologies and websites, bullies can send insults about a classmate to numerous individuals. In addition, these bullies build sites that target specific students or teachers.

Legal repercussions of cyber bullying

Sometimes, cyber bullying can be a crime. It is a criminal act, under the Criminal Code, to repeatedly communicate with others and cause them to fear for their safety and the safety of those around them. Defamatory libel — writing or stating something that is intended to harm someone’s reputation — is also a crime.3 Some forms of bullying, however, are not considered criminal, even though they have a harmful impact on those targeted.

Cyberbullies may be difficult to trace. They may use computers that are not their own, or claim that they were not the source of the message, but that someone else used their computer. However, if a message is traced back to the bullies, and they are using a school or workplace computer, they will be disciplined through the rules applicable in that space. If the school or workplace does not take appropriate actions against a cyber bully there may be other repercussions. For instance, if the bully is posting discriminatory messages based on any of the grounds covered by the Alberta Human Rights, Citizenship and Multiculturalism Act4 such as race, disability or sexual orientation, and the school or workplace does not address this discriminatory conduct, the victim may make a complaint to the Alberta Human Rights and Citizenship Commission (see www.albertahumanrights.ab.ca to see about potential complaints). This complaint would be filed against the school or workplace based on failure to protect its students or employees against discrimination in the form of cyber bullying.

Stopping and responding to a cyber bully

What can you do about cyber bullying if there are no legal repercussions? The following tips may help.5

When cyber bullying takes place over email:

if you do not recognize the sender’s name, do not open the message;
if you recognize the sender as a bully, ignore and delete the message;
if the bully is using a personal email account, notify the sender’s account provider;
if you cannot determine the identity of the bully, use email tracking software to trace the identity of the sender. Once you know, you can contact your Internet Service Provider to block the sender from your mail;
if the bullying is occurring in an institution, such as work or school, ask that the institution’s anti-bullying policy be applied; and
if the message is very disturbing, contact the police.

For cyber bullying over text messages:

tell someone else about it to get support;
change your phone number or get a new cell phone number; and
if the message is very disturbing, contact the police.

For cyber bullying that takes place through websites, identify the Internet Service Provider on the site. It can determine who runs the site and request that the site be removed. If there is any false information on the website, report it to the police.

For more information on cyber bullying and youth using the Internet see the Alberta Civil Liberties Research Centre website and follow the links to the resource Techno-tonomy: Privacy, Autonomy And Technology In A Networked World.

Notes

1 V. Steeves, Ph.D., “Young Canadians in a Wired World Phase II: Trends and

Recommendations”, (Media Awareness Network, November 2005).

2 Ibid.

3 Media Awareness Network, “Challenging Cyber Bullying”.

4 RSA 2000, c. H-14.

5 Be Safe Online: Bullying Online.

Bench Press: Children and Cyber-bullying

November 1, 2012 By Teresa Mitchell

From Nov/Dec 2012 Bench Press

A 15-year-old Nova Scotia girl discovered that someone had posted a fake profile about her on Facebook, using her photo, slightly changing her name and posting unflattering comments and sexually explicit references.

She was successful in obtaining a court order that the Internet provider disclose information about the publisher of the profile, but her requests for anonymity and a publication ban on the content of the profile were turned down, on the grounds that there was insufficient evidence of specific harm to her. The Nova Scotia Court of Appeal agreed that there was not enough evidence of harm to the girl to justify restricting media coverage through a publication ban.

However, the Supreme Court of Canada granted the teen an order giving her anonymity as she pursues the profilers. The Court reasoned that while freedom of the press and open courts are important, such access can be restricted by important interests such as privacy and protecting children from cyber-bullying. It found that while evidence of direct, harmful consequence to an individual applicant is relevant, courts can also find objective harm in the vulnerability of children to cyber-bullying.

The Court wrote

“Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl’s anonymous legal pursuit of the identity of her cyberbully should be allowed.”

But, the Court also ruled that the non-identifying parts of her profile should not be protected by a publication ban.

A.B. v. Bragg Communications Inc., 2012 SCC 46