Cyberbullying and the Law

Note: This article is intended as general information only and does not constitute legal advice. If you need legal advice, consult a lawyer or a legal aid clinic.

Federal law

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 website) 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’s 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 doesn’t 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 legally 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.

If the perpetrator’s identity isn’t known, a lawyer can ask for what is called a Norwich order to force the platform to share any information they have if “a court decides the public interest in disclosing their information outweighs their need for privacy.”[1]

Criminal law: This branch of law determines which actions are crimes against the state. In criminal law, there are several 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 didn’t 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. Uttering threats is also an offense that may apply if the perpetrator threatens the target’s health, their property or any of their pets.
    
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.
    
3. Publishing intimate images without consent was added as an offence in 2015. This includes both intentionally spreading an image "in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity" as well as "being reckless as to whether or not that person gave their consent to that conduct.”
    
4. Mischief in relation to data and unauthorized use of computer are also offenses that may apply if an account or device are hacked.
    
5. The perpetrator may be committing extortion if they try to make the target give them money or commit any act by threatening them with harm of any kind. An example of this is “sextortion,” a form of sexual exploitation that involves persuading young people to share explicit photos and then blackmailing them with the threat of sharing those.
    
6. It is also an offense to counsel someone to commit suicide. This charge can apply even if the target doesn’t make any attempt at suicide.

MediaSmarts’ research has found that Canadian youth are willing to turn to police for help dealing with online meanness and cruelty if they feel it is sufficiently serious: while just one percent listed calling the police as the first or second response to an imagined cyberbullying incident, one in six (14 percent) said they would call the police if they had tried two other methods to resolve the situation without success.[2]

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.

Provincial and Territorial Laws

Several provinces and territories have laws specifically dealing with online and offline bullying:

Alberta: The Education Act was revised in 2012 to define bullying as “repeated and hostile or demeaning behaviour by an individual in the school community where the behaviour 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 requires students 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,” while school boards must “establish, implement and maintain a policy respecting the board’s obligation under subsection (1)(d) to provide a welcoming, caring, respectful and safe learning environment that includes the establishment of a code of conduct for students that addresses bullying behaviour.” Alberta’s law is notable because it requires students to report cyberbullying if they witness it, with penalties including suspension and expulsion possible for those who don’t.

British Columbia: In 2023, the province passed the Intimate Images Protection Act, which gives a judge or tribunal the power to order any online platform to “stop distribution and remove an intimate image from its platform.”

Manitoba: In 2013, the province passed a bill, the Cyberbullying Prevention Act, that defines bullying in a way that specifically includes cyberbullying and makes parents responsible for their children’s cyberbullying if the parent is aware of it, could reasonably predict the effect of it and did nothing to stop it.  It also gives judges or justices of the peace the power to issue protection orders that may keep a perpetrator from contacting the target or even using any digital communications. The law also defines a tort of cyberbullying in civil law and allows targets to sue perpetrators or, in certain cases, their parents. In 2016, Manitoba passed the Intimate Image Protection Act, which creates a tort of “non-consensual distribution of intimate images” that allows provincial authorities to order the removal and destruction of intimate images online and help targets make criminal complaints.

New Brunswick: Section 1 of the Education Act includes both online and offline bullying in its definition of “serious misconduct.” Students are also guaranteed a “positive learning and working environment” free from “bullying, cyberbullying, harassment and other forms of disruptive or non-tolerated behaviour or misconduct, including behaviour or misconduct that occurs outside school hours and off the school grounds to the extent the behaviour or misconduct affects the school environment.” In Policy 703, Positive Learning and Working Environment, cyberbullying is defined as “including, but not limited to, posting inappropriate material online, sending harassing, deliberate or repeated emails and posting items online without permission of those involved.”

Principals are required to develop a positive learning and working environment plan and to report any incident of serious misconduct to the superintendent of the school district. Each school also must have a Parent School Support Committee that advises the principal on how to promote respectful behavior and prevent misconduct, helps to develop policies on how to prevent disrespectful behaviour or misconduct and how to support both those students who’ve participated in disrespectful behaviour and those who’ve been affected by it.

Nova Scotia: The province’s Education Act was amended in 2012 to explicitly include cyberbullying in schools’ responsibility to promote school and student safety. In 2017, the province introduced the Intimate Images and Cyber-Protection Act, which allows targets to apply for a “cyber-protection order” for themselves or for a minor for whom they are a parent or guardian. These orders can be made against a perpetrator, their parent or guardian if they’re a minor, or anyone involved in sharing an intimate image (including the company that runs an app or platform). The order can:

• forbid a person from sharing an intimate image,
• order them to take down the image,
• order them to pay damages to the person in the image,
• stop communicating with a target of cyberbullying, and
• pay damages to the target of cyberbullying, among others.

See the Cyberscan website for more information.

Newfoundland: The Safe & Caring Schools Policy includes “electronic” bullying in its list of inappropriate behaviors and requires schools to ensure “an environment free from bullying, harassment, intimidation and discrimination.”

Northwest Territories: The Education Act now includes a definition of “bullying” that includes acts, committed in school and out of school, intended or likely to cause fear or distress or to create a negative learning environment and where there is a real or perceived power difference between the perpetrator and the target. It also provides examples of cyberbullying including impersonating someone online or sharing harmful content online. The Act also requires school divisions to create Safe Schools Plans that address bullying and cyberbullying.

Ontario: The Education Act now includes a specific definition of “bullying”:

"bullying" means aggressive and typically repeated behaviour by a pupil where,

(a) the behaviour is intended by the pupil to have the effect of, or the pupil ought to know that the behaviour would be likely to have the effect of,

(i) causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual's reputation or harm to the individual's property, or

(ii) creating a negative environment at a school for another individual, and

(b) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, gender identity, gender expression, race, disability or the receipt of special education.

The following definition of cyberbullying is also given:

(1.2) Without limiting the generality of the definition of “bullying” in subsection (1), bullying includes bullying, known as cyber-bullying, that is done through any form of electronic means using any technique, including,

(a)  creating a web page or a blog in which the creator assumes the identity of another person;

(b)  impersonating another person as the author of posted content or messages; and

(c)  communicating material to more than one person or posting material on an electronic medium that may be accessed by one or more persons.

The amended Act also requires schools to provide “instruction on bullying prevention during the school year for every pupil,” “remedial programs designed to assist victims of bullying” and “professional development programs that are designed to educate teachers in schools within its jurisdiction about bullying and strategies for dealing with bullying.” Each school board is also required to “establish a bullying prevention plan for bullying in schools within the board’s jurisdiction.”

In 2016, a new civil law tort called "public disclosure of embarrassing private facts" was recognized by the Ontario Superior Court of Justice. This was the result of a case where a woman who sued a former romantic partner for sharing without her permission a sexually explicit video she had sent him. The tort is defined as "one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."[3]

Quebec: An Act to prevent and stop bullying and violence in schools modifies the Education Act and the Act Respecting Private Education. It defines bullying as “any behaviour, speech, actions or gestures, including cyberbullying, expressed directly or indirectly, in particular through social media, having the aim of injuring, hurting, oppressing or ostracising an individual” (tout comportement, parole, acte ou geste, y compris la cyberintimidation, exprimés directement ou indirectement, notamment par l’intermédiaire de médias sociaux, ayant pour but de léser, blesser, opprimer ou ostraciser).” School boards are required to create anti-bullying plans and all school staff must take part in the plan.

Quebec is the only province which has a “general intermediary liability regime” when it comes to online platforms. This means that the platform itself can be held liable if they knew their users were engaging in illegal activity but failed to take steps to stop it.[4]

Saskatchewan: The province amended its Privacy Act in 2018 to allow targets who’ve had intimate images of themselves shared to take legal action against the person who shared it. The law was changed in two significant ways: first, the person who shared the photo now has to prove that they had permission to share it; second, the suit can be brought in small claims court, which is both quicker and less expensive than proceedings in the Court of Queen’s Bench.

[1] O’Kane, J. (2023) How a woman is using an obscure legal tool to unmask online trolls in court. The Globe and Mail.

[2] MediaSmarts. (2023). “Young Canadians in a Wireless World, Phase IV: Relationships and Technology - Online Meanness and Cruelty.” MediaSmarts. Ottawa.

[3] Doe 464533 v N.D., 2016 ONSC 541 (CanLII). https://www.canlii.org/en/on/onsc/doc/2016/2016onsc541/2016onsc541.html

[4] Khoo, C. (2021) Deplatforming Misogyny: Report on Platform Liability for Technology-Facilitated Gender-Based Violence. Women’s Legal Education and Action Fund (LEAF) https://www.leaf.ca/publication/deplatforming-misogyny/