Cyberbullying is nasty but don’t make it crime
The death of Rehtaeh Parsons adds yet another chapter to the unfortunate story of young men and women driven to commit suicide due to “cyberbullying.” As with the Amanda Todd suicide this past October, Parsons’ passing has led to accusations that our “institutions” are failing to protect young women (and indeed, young men as well) and that the “authorities” are not doing enough to prevent bullies from plying their trade over the Internet and social media.
Yet while such reactions have undoubtedly been well intended, they fail to consider two critical questions: What is cyberbullying and how is it to be properly dealt with.
Most proponents of stronger action against cyberbullying imagine the introduction of laws similar to (or amending, as in the case of the recently defeated Bill C-273) those currently under the Criminal Code, namely the provision dealing with criminal harassment. However, an important distinction must be drawn between the type of conduct caught under criminal harassment and that contemplated by cyberbullying. The concern of criminal harassment is with conduct that makes one “fear for their safety or the safety of anyone known to them.” Conversely, most instances of cyberbullying involve conduct that is intended simply to insult and humiliate the target or diminish them in the eyes of others. The Supreme Court of Canada last year recognized this fact when, in the case of A.B. v. Bragg Communications Inc., it defined cyberbullying as “behaviour that is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person’s body, feelings, self-esteem, reputation or property.”
Cyberbullying, therefore, primarily relates to conduct that harmfully affects the psyche, and not the person or his/her property, which is the traditional concern of the criminal law. The importance of this distinction is critical, as this type of harm — for the most part — does not lend itself to being easily measured or assessed on any recognizable legal standard.
How does one determine whether a “reasonable person” standing in the shoes of the complainant would feel intimidated, humiliated or distressed or that their feelings or selfesteem were being harmed by the conduct of a bully? Clearly, these are highly subjective, personal questions that the criminal law and judicial system are ill-equipped to address.
Any law dealing with cyberbullying and, therefore, conduct relating to the vagaries of the psyche and human emotion, would at best be ineffective. At worst, it would be struck down as unconstitutional, as laws require “bright lines” so that individuals clearly know when they are onside and offside of them. Laws that are too “vague” or “arbitrary” leave themselves open to be challenged on constitutional grounds.
Moreover, while it is true that repeatedly calling someone a “slut” or a “loser” over social media may objectively cause humiliation or distress, or cause harm to one’s feelings or self-esteem, a law that prohibits such conduct raises a host of other worrisome questions. For example: Do we really want police and the justice system to assume jurisdiction in these instances, and is this a wise use of limited public resources? Do we want to subject bullies to the trauma of the youth criminal justice system? Does this constitute a salutary corrective measure against cyberbullying?
Ultimately, calls for greater vigilance against cyberbullying in the wake of Parsons’ and Todd’s deaths overlook the fact that far more serious criminal allegations were involved in both instances: rape in the case of Parsons and sexual harassment and extortion in that of Todd. While it seems clear that the “ball was dropped” by the authorities with disastrous consequences, cyberbullying was only part of the equation in the events leading to their deaths.
Those who argue for a legislative solution to cyberbullying imagine a world in which state authorities would have greater latitude to prosecute individuals for harmful Internet and social media conduct. Yet overreliance on the law as a corrective measure against cyberbullying is not the solution. Rather, it simply asks the police and the judicial system to “take care” of the problem, and in doing so “passes the buck” of responsibility away from those that can truly effect positive change in this regard: the community, schools and, above all else, parents.
Do we really want police and the justice system to assume jurisdiction in this nebulous area?
Anthony Lungu is a Toronto-based lawyer and holds an MA in humanities.