Cyberbullying creating difficult questions for legal system

When B.C. native Amanda Toddtook her own life in 2012 after being harassed online, a video she released detailing her experience caused widespread concern and raised questions as to howpolice handle the online world.

Her tragedy sharedsimilarities with another one that raised public outcry. Rehtaeh Parsons of Nova Scotiaattempted suicide after being cyberbullied and died soon afterward in 2013, prompting demands for a substantive response to cyberbullying.

• CBC Forum | How should lawmakers address cyberbullying?
• B.C. man Patrick Fox aims to 'destroy' ex-wife with revenge website
• Court strikes down anti-cyberbullying law created after Rehtaeh Parsons's death
• Gregory Alan Elliott not guilty in Twitter harassment case

Politicians have tried to respond, but their efforts have run into roadblocks and conflict has arisen over how to tacklecyberbullyingwithout breaching people's freedom of expression.

Such was the case when Nova Scotia's Cyber-Safety Act the first law in Canada aimed at cyberbullyingwas struck down in December by the Supreme Court of Nova Scotia for infringing on the Canadian Charter of Rights and Freedoms.

The definition of the cyberbullying in the act was called a "colossal failure" in the ruling because itcovered too many forms of expression beyond what was intended.

Halifax-based privacy lawyer DavidFraser, who made the charter challenge against the act, saidthe difficulty ofpushing forwardcyberbullyinglawis keeping thedefinition precise.

"The main challenge is actually defining what iscyberbullyingbecausecyberbullyingcovers a huge range of behaviours," saidFraser.

What should cyberbullying mean?

Nova Scotia'sCyber-Safety Act was created in the weeks following Parsons's death and allowedvictims to apply for protection orders to place restrictions oncyberbullies.

But the broad definition of cyberbullying in the act garnered it immediate opposition and was eventually grounds for striking the law down.

Cara Zwibel, a director attheCanadian Civil Liberties Association,opposed the act for its infringements on Canadian freedoms.

She said lawmakersneed to be more focused about cyberbullying by thinking specifically of what harms they seek to address and by "coming up with a relatively clear and a relatively narrow definition of what constitutes bullying."

Frasersaid more experts need to be consulted to deterimine acleardefinition of cyberbullying, something that did not happen when the act was originally drafted.

Despite the problems associatedwith theCyber-Safety Act, there are thosewho would like to see parts of it imitated elsewhere.

KendraMilne, director of law reform forWest Coast LEAFa group thatadvocates for law reform in support of women's rights agreed the Nova Scotia law was too broad.

But she added the law's protection orders could work wellandother provinces should try to adopt similar laws with better definitions ofcyberbullying.

Criminal harassment on Twitter

With new laws not forthcoming for many aspects ofcyberbullying, courts have relied on extending theboundries of older laws.

One such instance was in the Ontario trialof Gregory Alan Elliott,who wasfoundnotguilty of criminally harassing online feminists StephanieGuthrieand HeatherReillyon Twitter on Jan. 22

The ruling saidthat the threshold of criminal harassmentan objectively reasonable fear for one's safety had not been met in the case.

A recent CBC investigationalsohighlighted the limitations of criminal harassment. While the RCMP recommended the charge against B.C. native Patrick Fox, who aims to 'destroy'his ex-wifeDesireeCapuano with a revengewebsite, the Crown opted not to proceed.A spokesperson for the Crown said theycouldn'tconclude the threshold for criminal harassment wasbeing met, in part because Capuano lives in Arizona.

Frasersaid the definition of criminal harassmentcould be examined by lawmakers to better address online behaviour.

"Ido think that maybe we need to be thinking about tweaking the [criminal]harassment [law]," he said. "Maybe there should be something relating to seriously psychological injury or harm or intimidation."

Milnedisagrees with the idea, saying she thinks the court has underlying biases and assumptions about reasonable fear that needto change more than criminal harassment law itself.

"Theproblem is understanding what is likely or when it is reasonable for someone to be fearful for themselves," said Milne."It's more a matter of shifting stereotypes and assumptions in the legal system and in society at large about what that means when people can and do reasonably feel fearful."

Beyond legal measures

Beyond Canada, lawmakers arealso trying to find legal means to handle cyberbullying.

On Feb. 10, game developer Zoe Quinn decided to drop her U.S. lawsuitagainst ex-boyfriendEronGjoni,a casestemming from him allegedlyleading online harassment against her.

In an online statement, shesaid she no longer wanted to gamble on what precedent would be established in her case, which was held in a Bostonmunicipal court.

Despite efforts to createlaws on cyberbullying, there is division on whether thatis a good way to address the problem.

"The law can be a pretty blunt instrument," said Zwibel."It's not necessarily able to capture all the nuance that's involved in communication."

Vancouver-native Carol Todd said she knows how limited the law can bewith cyberbullying.After the death of her daughter Amanda, Todd has become an advocate and speaker against online harassment.

Todd said education is crucial to combatcyberbullying, but acknowledges the place laws have in the battle.

"You can have lawmakers on one hand making the laws,but you need to have the resources and education at the other end."

Several provinces have started to take measures towards addressing cyberbullying. A jointreport released from B.C.'s child representative and privacy commissioner outlines a call for the provincial government to make a cyberbullying strategy and new law came into effect in Manitoba in January allowing victims of revenge porn to sue perpetrators.

Nothing's going to happen overnight. I'm hoping that come10years down the roadwe'll see a whole different mind shift.- Carol Todd, anti-cyberbullying advocate

But Todd said she would like to see thefederal government take on a bigger role and address more aspects ofcyberbullyingbeyond the nonconsensual distribution of intimate images, which wascriminalized under Bill C-13.

"Nothing's going tohappen overnight," said Todd. "I'm hopingthat, come 10 years down the road, we'll see a whole different mind shift. It's shifting but all shifts are slow."

CBC Forum: How should lawmakers address cyberbullying?

Can't see the forum? Click here.