KPA Lawyers - February 18, 2015
Information in today’s digital age travels at unprecedented speed, connecting us through digital devices across time and space. Digital technologies and their practices have become so ubiquitous that we often take for granted how intimately immersed we are in this information landscape. We never have to miss a beat: checking last night’s hockey scores; staying up to date on news around the world; scouting potential romantic partners; emailing our boss when we’re running late; or just indulging in a funny Facebook status. The possibilities have become almost endless.
Yet, a victim of cyber-bulling may describe this potential as ruthless for the very same reason. Technology enables bullying behavior online through any use of electronic communication to threaten or intimidate another. But this does not even begin to do justice to the severity of potential forms of sexual, racial, or otherwise slanderous assault propagated online. The anonymity of certain online communication and platforms allows for deeply threatening messages to circulate freely. As the digital landscape grows, so too does the spectrum of possible attacks online.
These attacks are no longer confined to nasty texts, or inappropriate private messages, they’re photos and videos too. The private photo you sent your significant other can be easily disseminated to everyone in his or her contact list, or made public on social media websites, leaving the victim vulnerable and violated.
In tragic instances of cyber-bullying – such as attacks on Amanda Todd and Rehtaeh Parsons – intimate photos and sexually explicit videos of them were non-consensually taken, and non-consensually circulated. The constant barrage of verbal assaults that followed resulted in depression, anxiety, and ultimately led them to commit suicide. Cyber-bullying has become so pervasive that school campaigns have been erected to deal with the problem. Because the problem of cyber-bullying is so complex and violates our fundamental rights and freedoms, legislative measures must be taken in order to protect citizens from potentially harmful actions occurring online.
Bill C-13 is in pursuit of criminalizing acts of non-consensually circulating intimate photos, so as to protect children and young adults from being victimized and cyber-bullied in this way.
Bill C-13, Protecting Canadians from Online Crime Act, introduces a new offense to the Canadian Criminal Code that makes it illegal to circulate an intimate image with any telecommunication device without the consent of the individual or individuals who are portrayed in the photo. The Bill also gives the court the right to order the removal of the image and forfeiture of the device that was used to commit the offense.
Additionally, Bill C-13 introduces new lawful access amendments that give law enforcement officers the authority and investigation powers to amass electronic and online evidence, and information relating to individuals involved in the offense. The police thus reserve the right to receive online data, phone records, or digital tracking warrants.
As of December 9th, 2014 Bill C-13 received royal assent. What this means is that if you take an intimate photo of someone and send it to another person(s), publish it, or distribute it in any way, without the person’s consent, you will have committed a criminal offense.
If a friend sends you an intimate or sexually explicit photo of him or herself, and you chose to send this photo to some else, without asking the sender for their permission first, you will have committed an offense.
If you take a screen shot of a friend’s intimate photo online without their permission and send it to someone else, or re-publish it yourself, you will have violated the provisions set out by Bill C-13, and thus will have committed an offense.
If you are involved in the offending act, police officers (or other government authority) can garner a warrant that can intercept your communication data in order to seize, track, and search your digital device. In order to prevent an offender from deleting incriminating data, the authorities can receive a warrant that will compel the offender to preserve this digital evidence for 21-90 days (depending on the specific circumstance). This includes metadata (information about data) such as your browser history, or your IP address.
Further, the Act offers immunity from criminal and civil liability to a person (such as Telecommunication Service Providers, Internet Service Providers, or financial institutions) who voluntarily preserves or provides data to law enforcement officials.
This means that these companies can voluntarily provide private data to the police . In this case police are not obliged to serve a warrant to access information. Telecommunication and Internet Service Providers can just give it to them in exchange for immunity.
This immunity is a point of contention for many. Critics warn that Bill C-13 introduces new online privacy issues. This immunity can potentially give companies an incentive to voluntarily provide private and personal information to the police. Some even hazard that Bill C-13 is just an excuse to garner more information about digital citizens, under the guise of a Cyber-Bullying law.
However, critics and supporters alike must acknowledge that Bill C-13 clearly criminalizes acts of cyber-bullying, by making it an offense to non-consensually circulate, publish or otherwise distribute intimate photos of another individual.