The Legal Line

By: Anna Piekarzewski

Cyberbullying is challenging to regulate because it is a complex issue with many factors. Technology, cultural attitudes, school practices, and student behaviour are all constantly evolving and the law is trying to keep up. New legal questions are always coming up:

  • What are my legal rights and obligations as a student? As a parent? As a teacher or school official?
  • Can I be held responsible for something that other people post on my website or in a hyperlink?
  • Isn’t cyberbullying protected by our right to free speech?
  • How can the law protect my privacy?
  • What kind of legal protection or resources surround social networking sites and other new technology?
  • Does human rights law and international law apply to cyberbullying?

Knowing the state of the law on these and many other questions is essential to understanding and addressing cyberbullying; we need to define the legal line.

What is the legal line?

The legal line indicates when cyberbullying behaviour crosses over from an issue to be dealt with by parents, students, or teachers alone, to one where courts, police, and legislators become involved. Knowing when behaviour crosses the legal line helps to define our legal rights and responsibilities. Understanding how the law deals with cyberbullying reflects where our society currently stands on this issue.

The law deals with cyberbullying through three main avenues:

  • Criminal law
  • Civil law
  • Specific statutes targeting bullying and cyberbullying

Criminal law

Criminal law is federally regulated in Canada, so criminal aspects of cyberbullying will be consistent across the country. Criminal harassment and defamatory libel are the main prohibitions in the Canadian Criminal Code that touch on cyberbullying. Criminal harassment is found under section 264 of the Criminal Code. An important detail in the context of cyberbullying is that criminal harassment, the criminal action causing someone to feel threatened, does not need to be intentional. Defamatory libel, an offence under section 298 of the Criminal Code, consists of publishing an untrue statement that is likely to injure the reputation of a person. As cyberbullying becomes more regulated, other offences such as child pornography or hate crimes are being expanded and applied, raising many new questions.

Civil Law

While criminal law can be understood as the state regulating when the legal line has been crossed, civil law represents a conflict between people, and is focused on compensation. The civil law standard for proving a case is lower, and so even though an action may not amount to a criminal offence, it is important to know what kind of situations may leave an individual exposed to a civil action. The main cause of civil action in cyberbullying cases is defamation, where the party bringing the case to court will have to prove the damage to reputation caused by the other party’s actions. Another area of civil law that is expanding to include cyberbullying is negligence, particularly in the case of school officials.

Specific Statutes Targeting Cyberbullying

Many Canadian provinces and other countries are attempting to tackle cyberbullying through new legislation specifically targeting the issue. Ontario’s Bill 13, An Act to amend the Education Act with respect to bullying and other matters and Quebec’s Bill 56 are two prominent examples. These cyberbullying statutes aim to clarify the roles and responsibilities of school officials and allow teachers and school boards greater powers such as suspension and expulsion to discipline and respond to cases of harassment and cyberbullying. The new laws also often include more preventive measures, such as imposing obligations on schools and boards to institute cyberbullying education and awareness campaigns. Even with these proactive measures, however, some still question whether more legislation is the answer, or whether it is education, and not legislation, that might better address the problem.

As the law around cyberbullying evolves, new legal approaches will be developed. For example, international law and human rights law may be applied more frequently, especially when new contexts do not seem to fit with old legal approaches to criminal and civil law. The legal line, then, is constantly shifting as the law tries to keep up with the evolution of digital citizenship.