Cyberbullying and Intimate Images Report Released
Following the tragic death of Rehtaeh Parsons, a special meeting by the Provincial and Federal Ministers of Justice decided to investigate the state of the law around the distribution of images of an intimate nature without consent. Many observers believed that the provisions under the Criminal Code are insufficient in dealing with this growing problem among young Canadians.
The subcommittee of the Cybercrime Working Group (CWG) responsible for this released their report this week. The report notes that the traditional response in Canada to cyberbullying relies heavily on education initiatives and promoting public awareness and support among families and communities.
Although there are no explicit provisions in the Code prohibiting cyberbullying, there are several which may apply and have been used, 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 calls for specific changes to Section 372 to clarify that this offence can be committed through electronic communications and can be intended for a broader audience than one person.
The report also calls for a modernization of the investigatory powers under the Code, including:
- Data preservation demands and orders;
- New production orders to trace a specified communication;
- New warrants and production orders for transmission data;
- Improving judicial oversight while enhancing efficiencies in relation to authorizations, warrants and orders; and,
- Other amendments to existing offences and investigative powers that will assist in the investigation of cyberbullying and other crimes that implicate electronic evidence.
Additionally, there are several provincial statutory regimes which address cyberbullying, such as:
- Alberta’s Education Act
- Manitoba’s Public School Amendment Act and Bill 18, The Public Schools Amendment Act (Safe and Inclusive Schools)
- Nova Scotia’s amendments to the Education Act through Bill 30, Promotion of Respectful and Responsible Relationships Act and the proposed Cybersafety Act
- Ontario’s amendments to the Education Act in the Accepting Schools Act
- Quebec’s Bill 56, An Act to prevent and stop bullying and violence in school
The focus of most of these statutes is to give educators the ability to discipline students for cyberbullying behaviour. What defines cyberbullying though is still hotly debated. One particular problem is the use of intimate photos or videos, often originally intended for personal use, which appears to be a significant and growing problem among young people around the world.
The N.J. Code of Criminal Justice is the only state statute in the U.S. to address this problem explicitly. Other jurisdictions outside the U.S. have generally prosecuted such behaviour under existing criminal provisions, or have expanded existing provisions to explicitly include such behaviour.
The report suggests the creation of a new criminal offence in Canada of “of non-consensual distribution of intimate images, with a maximum penalty of 5 years imprisonment for indictment and 6 months imprisonment on summary conviction. The report also proposes amendments allowing for information to be obtained from ISPs for the purposes of prosecution.
From the technical side, hunting down a bully on the net can be as straightforward as hunting down one in “meat space”, or rather different and unnecessarily hard.
This affects the thinking around preservation and production orders, as well as the immediacy needed in cases where suicide is a concern.
When faced with an example of bullying in such a context many years ago, the person doing the bullying was known to the victim, so our first step was easy: ask the victim to forward the bully a note from my department. The note used moral suasion to discourage the bully, without making it an academic disciplinary matter, and without us needing to know their identity.
If the bully had been unwilling to stop, we could have escalated it to a disciplinary matter and started a process that could, in a severe case, end up before of the courts. In this case we did not need to do so.
As it happens, we took advice from the library community, who had worked through similar problems in the past, which explains why we were protective of the bully’s identity.
This worked well in the era of email, and can be extended to work in public discussion groups like Facebook.
If the person doing the bullying is not known, we have two separate questions: who’s the victim, and who’s the bully?
Because we’re trying to help the victim, we don’t really need to know who they are. If we can communicate with them, we can help. We may need to have a third party pass on our offer, along with our contact information, in a privacy-sensitive way. In an urgent case, a suicide councillor or police officer might well phone an ISP and ask them to pass them on to “whoever is greenie@zaphod.org“, without telling the councillor or officer who they are going to be talking to. In less urgent cases, they can pass on an email, as we did in our case.
This is not something ISPs are used to, so we may well need a legally valid reassurance to them that they can do such a privacy-friendly forwarding operation without the victim’s permission, and in addition that they have at least a moral duty to attempt a forwarding.
When the bully is unknown, a third party such as an ISP may be able to forward a privacy-preserving appeal to the bully with impunity, and safeguard information if legal action is needed subsequently.
Personally, I would prefer to see something relatively lightweight available, to minimize the time taken and the work that would be imposed on an ISP.
I would prefer to receive a request that I forward a call or an email to one of my subscribers or their children (!) in a privacy-preserving manner, and a warning that I should make and preserve a note saying what and to whom I forwarded the police officer, councillor or whoever. I would expect a court’s order before releasing that information, and I would expect to be able to discard my records after 90 days or so.
In some cases, I would not be able to identify the person to forward to, but only another ISP. In that case I would prefer to pass the police officer on to them, with my blessings and a copy of the official request, to reassure them that this was legitimate.
This general framework can be applied to less dangerous “cyber” offences: one might hunt down the victims of bot-nets with such a lightweight tool, and be able to take all but the ultimate step of identifying an attacker with orders that an ISP could process quickly and without risk to their business.
–dave
In the report Cyberbullying Hurts: Respect for Rights in the Digital Age, on December 12, 2012 many complained of the difficulty of getting online search engines and social networks to remove cyberbullying content – without compelling Google through legislation to remove cyberbullying links from all its search engines and financially supporting and profiting from cyberbullying sites – cyberbullying will not stop. Read more here.