Is cyberbullying criminal harassment?


Social media facilitates friendly communications between people but these messages can be mean or hurtful. While most of the correspondence in the latter group falls below the standard of criminal behaviour, here is what you need to know about cyberbullying as a form of criminal harassment.

How common is cyberbullying?

It is generally thought that less than 20 per cent of cyberbullying incidents are reported to police. Information from Public Safety Canada states that approximately one of every five teenagers has been the target of cyberbullying, while one out of every six has been a cyberbully at some point in their lifetimes. There are no corresponding statistics for adults.

What form does it take online?

Cyberbullying encompasses any type of online communication, including email messages, texts, online gaming sites or information given on social media platforms. It can include teasing and spreading rumours. In most cases, these forms of cyberbullying would not be considered criminal acts. However, cyberbullying can be considered a criminal offence if it includes online harassment, cyberstalking and cyber-smearing. Cyber-smearing is creating, posting and/or distributing sensitive, private or embarrassing information or images of a person without their consent.

What if I shared someone's intimate photos?

In 2014, the Criminal Code was amended to recognize that sharing intimate images online without permission is illegal. Section 162.1 states that anyone “who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct,” is guilty of a crime.

Jail sentences of up to five years can be imposed as a penalty. In addition, the cellphone, computer or another device that was used to share the images may be seized and the court may order that the victim be financially compensated for the cost of removing the images from the internet.

What is an ‘intimate image’?

The Code defines an “intimate image” as a photo or video that depicts a person engaged in explicit sexual activity or one that shows a sexual organ, anal region or breast. The image or video would have to be taken in a circumstance where the person depicted had a reasonable expectation of privacy at the time and they did not relinquish their right to privacy. The act of distributing intimate images without the consent of the person shown is a common form of cyberbullying and is called “revenge porn.”

What if I made someone fear for their safety?

If police feel your comments online made someone else fearful for their safety, you can be charged with uttering threats. Section 264.1 of the Code makes it a criminal offence to threaten to “cause death or bodily harm to any person” or to say that you will destroy any of their property, including buildings or pets.

The court has sent people to jail for uttering threats online, as shown in a 2017 case. It involved a man who was jailed for six months after he posted a nude photo of his ex-girlfriend on Facebook along with a message about how he wanted to harm her.

People can also face the charge of intimidation if they engage in cyberbullying. According to s. 423 of the Code, it is a crime to compel “another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing”.

Is it illegal to defame someone online?

It is a crime to publish defamatory libel about someone, either in print or online. Section 298 (1) of the Code states that it is illegal to publish something “without lawful justification or excuse, that is likely to injure a person’s reputation by exposing them to hatred, contempt or ridicule, or that is designed to insult the person.” However, criminal defamation charges rarely arise.

What are the defences fo r cyberbullying?

If you are charged in relation to your online communication, I will study the messages and material you posted to see if it could objectively be considered criminal harassment. I may be able to argue that the complainant's fear for their safety is unreasonable and that your messages were not meant to be threatening in nature. The alleged victim may have been hyper-sensitive to your actions while the average person would have not had the same reaction.

Another defence could be that you did not realize the person felt harassed and you were not aware that they wanted you to stop contacting them. I may also be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during the police investigation.

What is needed to convict?

The crown must prove all of the elements of the offence beyond a reasonable doubt and show the complainant felt harassed because of your online activity. If it can be shown that it was not reasonable for the complainant to be afraid, you can be found not guilty.

Contact me for assistance

If you have been accused of any form of criminal harassment, in relation to your online postings or in other ways, you need the assistance of an experienced criminal attorney. The law in this area can be nuanced while the penalties are very real and can include time behind bars. Arrange for a free consultation and let me advise you on your options.