Cyberbullying and the Law Fact Sheet

Backgrounder

Cyberbullying can be much more severe in its effects than offline bullying because the targets feel they have no escape. Also, because of the wide scope of the Web, there can be many more witnesses to the bullying.

Perpetrators may be more likely to engage in bullying behaviour online because they can’t see or hear the effects of their actions, and because it’s possible to be anonymous online.

Forms of Cyberbullying

Insulting: Posting or spreading false information about a person that will cause harm to that person or that person’s reputation.

Targeting: Singling someone out and inviting others to attack or make fun of her or him.

Identity theft: Pretending to be someone else to make it look like that other person said things he or she doesn’t believe or that aren’t true about him or her.

Uploading: Sharing images of a person, particularly in an embarrassing situation, without her or his permission, or sharing emails without the writer’s permission.

Excluding: Pressuring others to exclude someone from a community (either online or offline).

Harassment: Repeatedly sending someone nasty, mean and insulting messages.

How the Law Addresses Cyberbullying

Cyberbullying can be addressed under civil law or criminal law, based on the situation.

Civil law: This is the branch of law that deals with property rights, personal dignity and freedom from injury. Under civil law, there are three approaches to cyberbullying:

1. A cyberbully may be engaged in defamation. This is when the bully causes harm to someone’s reputation by spreading false information about that person. In general, defamation that appears temporarily (as unrecorded speech or in a live broadcast) is called slander, and defamation that appears permanently (in a book or on a Web site) is called libel.

To be libellous a statement must: do harm to someone’s reputation, have a clear and obvious target, and be seen by people other than the person making the statement and the target.

In libel cases, the target can lay a suit against the person making the statement. If the suit is successful, the person making the statement will have to pay damages (money) to the target.

A person accused of libel may defend himself or herself by saying that the statement was true, that it was a fair comment (a genuine criticism, not a personal attack), or that he or she innocently reproduced the statement without knowing what it was.

2. A perpetrator may be creating an unsafe environment by making the target feel that she or he cannot go to school without facing violence, teasing or exclusion. Schools and workplaces are required to provide a safe environment for their students or employees, and must take any appropriate action to do so. A school, therefore, might punish a student for online behaviour that is making it hard for other students to learn in a safe environment. In Ontario, the Safe Schools Act has been changed to specifically include online behaviour: students can now be suspended or expelled for cyberbullying, even if it is done outside the school.

A school or workplace that does not do everything it can to provide a safe environment can be sued by the target(s). Even if a statement is not libellous, spreading it around might still create an unsafe environment.

3. Finally, a person is responsible for any consequences that he or she might reasonably have guessed would happen. Therefore, a perpetrator who suggests that a depressed student should kill herself would be liable if the student actually did kill herself, as long as the perpetrator had reason to believe it was a likely result.

Criminal law: This branch of law determines which actions are crimes against the state. In criminal law, there are two approaches to cyberbullying:

1. Harassment is a crime under the Criminal Code. Harassment is when something a person says or does makes someone fear for his or her safety, or for the safety of others. Even if the perpetrator did not intend to frighten someone, she or he can be charged with harassment if the target feels threatened. Criminal harassment is punishable by up to 10 years in prison.
2. Defamatory libel is a crime under the Criminal Code. It is most often treated as a crime if the libellous statement is directed against a person in authority and could seriously harm his or her reputation. Defamatory libel is punishable by up to five years in prison.

Section 2 of the Canadian Charter of Rights and Freedoms guarantees freedom of expression. However, this right is guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” and, in the case of cyberbullying, must be weighed against Section 7. The latter section guarantees “the right to life, liberty and security of the person.” In general, Section 2 of the Charter has not been accepted as a defence in civil or criminal bullying cases.