Area of Law: Internet and Cyber Law
Answer # 363
CyberbullyingRegion: Ontario Answer # 363
The increase of communications through the Internet – websites, social networking, emails, text/instant messaging – has resulted in people engaging in fewer real interactions and more cyber relationships.
Although there seems to be a great amount of communication, experts have stated that the use of technology does not provide the connectedness that real communications do, and instead, increases the feeling of being alone. People then lose much of their ability to have empathy and deep understanding, and can often end-up making thoughtless, quick statements. In addition, experiences and emotions are often exaggerated or faked in order for the person to have something interesting to say. As a result, there has been a dramatic increase in cyberbullying. The Government of Canada reports that 8% of Canadian online teens say they have been victims of cyberbullying on social networking sites.
Cyber communication has created, among other things, the ability for:
- information to be communicated quickly,
- information to be spread widely,
- the communicator to be distanced from the recipients of the communication, and
- statements to remain available and accessible forever.
Most cyberbullying occurs with teenagers, however, it can start with children at a much younger age. As well, even adults have engaged in similar behaviour in workplace communications – for example, through emails, or online corporate bulletin boards.
What is cyberbullying?
Cyberbullying occurs when someone becomes a target of actions by others – using computers, cellphones or other devices – that are intended to embarrass, humiliate, torment, threaten or harass. It can happen only once, or occur repeatedly.
Teens sometimes refer to cyberbullying as hating, trolling, or drama. Some common forms of cyberbullying include using the Internet, specifically social websites, text/instant messaging, and emails resulting in:
- Libel or Insult – posting or spreading untrue and harmful information about a person. For example, spreading false rumours or gossip, which is intended to embarrass the other person.
- Targeting and Inciting Hate – singling out a person (or group of people) and inciting others to attack or hate them. For example, creating online polls designed to rate someone within negative categories; or creating online hate groups.
- Identity Theft – pretending to be someone else for the purpose of doing harm, such as sending hurtful, offensive, or embarrassing messages or posts as though you were them. For example, impersonating someone else by hacking someone’s email account, or using their telephone, or using someone’s password to get into their social networking account.
- Uploading – sharing images of a person, particularly in an embarrassing situation, without her or his permission, or sharing emails without the writer’s permission. For example, take embarrassing pictures or video of someone and then sending it to others or posting it without their knowledge or permission.
- Excluding – encouraging or pressuring others to exclude someone from, either an online or offline, community or group.
- Harassment and Sexual Harassment (Sextortion) – sending mean, insulting or threatening messages repeatedly, such as posting or sending stories, pictures, jokes, or cartoons that are intended to embarrass or humiliate; threatening the victim with harm if they do not post intimate sexual photos and videos of themselves.
How can you prevent cyberbullying?
Children, teens and cyberbullying
There are a number of ways a parent can help protect their children from cyberbullying. The most important thing is to keep the lines of communication open and talk with your children about cyberbullying. Find out if anyone they know, including themselves, has been a victim, a witness, or a perpetrator of cyberbullying. It will require discussions about what forms cyberbullying can take, and the harmful and long lasting effects it creates.
Parents can take necessary steps to:
- Learn what your child is doing online, for example, what websites they visit and what online accounts they may have,
- Teach your child safe online behaviour, such as the consequences of posting something online,
- Set rules for your child’s online activity, including using privacy settings; make sure they are aware of the importance of safe passwords,
- Keep abreast of the newest social media messaging and the latest telephone applications being used by children,
- Teach your child how to respond to cyberbullying, including not responding to, and blocking the person doing the bullying,
- Compare in-person communications and online communications, explain that what is not acceptable in-person, is also not acceptable online,
- Openly discuss that all communications and images posted and sent by your children are accessible forever and can be spread without limitation, and
- Opt-out of many of the social networking sites.
Cyberbullying in the workplace
Generally, there is legislation specific to problems that arise in the workplace, or from the behaviour of employees outside of the workplace. The various issues usually fall under the categories of discrimination, harassment and sexual harassment. Although the actions and the results may be similar to those in teen cyberbullying cases, in the workplace, the term cyberbullying is not generally used. The provincial and federal human rights and employment laws apply to these behaviours when they occur in the workplace. You can refer to the Employment law and Human Rights law sections of this website for more information.
Can I sue someone for cyberbullying?
Yes. The reasons for bringing a civil action can include:
- loss of reputation,
- emotional pain and suffering,
- costs of moving schools,
- costs of seeking professional help (such as counsellors or legal advisors),
- costs of damage done to the victim’s property as a result of the bullying, and in extreme cases,
- costs for a physical assault on the victim, directly resulting from the cyberbullying.
Generally, the evidence to support the cause of the damages is the communications themselves. Electronic communications can be traced to the originator and those who participated later.
The types of remedies available include those available for other types of lawsuits, such as monetary compensation, and injunctions to stop the behaviour. Depending on the situation, there may be a variety of different remedies available. For example, the person responsible for the bullying may be suspended from school, be required to write an apology to the victim, or be required to participate in an ‘anti-bullying’ program.
If the person responsible is a minor (under the age of majority), the parents of the minor may be held responsible for the damages. Most provinces have legislation, either a separate Parental Responsibility Act, or laws incorporated in their family law acts, that, to some extent, address this issue. The parents must be found to have not been acting in accordance with the requirements of the legislation. Also, in such cases, the actions are often limited to the Small Claims Court, and there are usually limits placed on the amount that can be awarded by the court (sometimes below the small claims’ limits).
There may also be an action that can be brought against the school and/or the school board, if they were found to be negligent in fulfilling their responsibilities under the law. Moreover, it may be possible to sue the host of the website which facilitated the bullying.
The requirements for bringing a civil action for cyberbullying can be quite technical and extensive. Also, there are time limits for starting claims, which depend on the type of claim and who is being sued. It is advisable to seek the assistance of a lawyer as soon as possible if you are considering starting a lawsuit.
When is cyberbullying criminal?
In addition to civil liability, there are cases where cyberbullying may be criminal. Depending on the nature and frequency of the communications, the person responsible for the bullying may be charged with one or more of the following Criminal Code offences:
- Defamatory libel
- Criminal harassment
- Uttering threats
- Unauthorized use of a computer
- Identity fraud
- False messages
- Counselling suicide
- Incitement of hatred
- Child pornography
Some of these offences are strictly indictable offences, and as such, carry serious penalties for those found guilty.
Provincial and territorial cyberbullying laws
In response to the increase of online bullying and its serious consequences, some of the provinces have introduced new cyberbullying legislation.
- Alberta’s Education Act includes a definition of cyberbullying,
- Manitoba’s bill ‘The Cyberbullying Prevention Act’ is currently in the legislature,
- New Brunswick’s Education Act includes definitions of both online and offline bullying,
- Nova Scotia’s Cyber-Safety Act was struck down on December 15, 2015 after the Supreme Court of Nova Scotia ruled that it violated Charter rights. However, the CyberSCAN investigative unit will continue to operate and victims of online bullying can still contact them for advice and help,
- Ontario’s Education Act has been amended to include a section on cyberbullying and gives directions to schools on how to address it,
- Quebec amended its Education Act and the Act Respecting Private Education with An Act to Prevent and Stop Bullying and Violence in Schools.
Specifically, Ontario’s Education Act states the following:
“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; (intimidation)”
In addition, the Education Act also provides a definition of cyberbullying:
“For the purposes of the definition of “bullying” in subsection (1), bullying includes bullying by electronic means (commonly known as cyber-bullying), 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 content or messages posted on the internet; and
(c) communicating material electronically to more than one individual or posting material on a website that may be accessed by one or more individuals.”
The effectiveness of the legislation, however, is still undetermined. The issue of bullying is often difficult to deal with as many students can take on the roles of bully, victim and bystander (witness). Sometimes, they engage in these roles at the same time. In addition, it is difficult to clearly define behaviours that are bullying. Similar to harassment, the behaviour can be difficult to define, but once exhibited, it is easy to spot. Numerous reports on the issue of bullying agree that it is a problem that is most effectively addressed by improving understanding of relationships, and that legislation designed to find out who the bully is and what happened, does not work either in preventing cyberbullying or dealing with it effectively once it occurs.
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