Legal Briefs: How Does Civil Law Respond to Cyberviolence?
It is possible to start a lawsuit against an online attacker in order to recover money to compensate for injuries sustained as a result of an attack. However, hiring a lawyer can be expensive, the process can be lengthy, and it may be that the online attacker has no money or assets to pay for any compensation ordered. Certain forms of online attack may also be addressed through a regulatory body, such as a federal or provincial privacy commissioner. In this section, I discuss three ways that certain cyberbullying behaviours may be addressed through civil litigation. I then discuss failed experiments in Nova Scotia and Manitoba to create a right to sue for “cyberbullying,” as defined in specific legislation.
Privacy and intimate images
Women and girls are disproportionately affected by the non-consensual distribution of intimate images, a form of cyberviolence that is sometimes mistakenly referred to as “cyberbullying.” This form of cyberviolence seriously intrudes on the target’s privacy and dignity, and often exposes them to further risks of violence, harassment, and conflict with employers, family, and peers. Below, I discuss three avenues of civil legal recourse available in British Columbia, Ontario, and Manitoba.
British Columbia, Manitoba, Newfoundland and Saskatchewan Privacy Acts
The Privacy Acts in British Columbia, Manitoba (RSM 1987, c. P125), Newfoundland (RSN 1990, c. P-22) and Saskatchewan (RSS 1978, c P-24) create a right to sue for invasion of privacy. In British Columbia, s 1(1) of the Privacy Act makes it a tort for a person to, willfully and without claim of right, violate the privacy of another person. The Act specifies that a person is entitled to the nature and degree of privacy that is reasonable in the circumstances, having regard for others’ lawful interests, the nature, incidence and occasion of the violating act(s), and any relationship between the parties. Eavesdropping and surveillance are both forms of conduct that can violate privacy under the Act.
In 2016, in TKI v TMP, the British Columbia Supreme Court ordered a man to pay $93,850 to his stepdaughter for surreptitiously observing and video-recording her while she was undressed in the bathroom, relying in part on s 1 of the Act. Although this case did not involve online distribution, it demonstrates that the Act may allow recovery for cyberbullying and cyberviolence incidents that involve invasions of privacy.
In 2016, Manitoba passed The Intimate Image Protection Act which makes it a tort to to “distribute an intimate image of another person knowing that the person depicted in the image did not consent to the distribution, or being reckless as to whether or not that person consented to the distribution.” An online attacker that engages in this conduct can be ordered to, among other things, pay the plaintiff damages, give the plaintiff any profit they earned in distributing the image, and cease and desist from that behaviour. In a lawsuit for non-consensual distribution of intimate images, the court can prohibit publication of the name of any party to the action (or any identifying information) if the court determines that making that order is in the interests of justice. As discussed in subsection (iv) below, a full or partial publication ban can offer a plaintiff important protections, preventing them from being further victimized by publicity from the case.
In Doe 464533 v ND the Ontario Superior Court of Justice held that a woman whose ex-boyfriend posted an intimate video of her on a pornography website without her knowledge or consent was entitled to damages of $100,000 (including aggravated and punitive damages), costs of over $36,000, and an injunction to prevent him from repeating the conduct or from contacting her or her family. Although this case was decided in Ontario, it could be a helpful precedent in other provinces and territories in Canada. The Court concluded that the defendant was liable for breach of confidence, intentional infliction of mental distress and invasion of privacy (public disclosure of private facts). The Court also found that the ex-boyfriend had invaded Ms Doe’s privacy by publicly disclosing her private life, because the act of publication would be highly offensive to a reasonable person and is not of legitimate concern to the public.The judgment in this case was set aside and the case will be retried, but the precedent it establishes is still useful for other cases in the mean time.
Supreme Court of Canada (SCC)
One of the key drawbacks to bringing a lawsuit in a cyberbullying or cyberviolence case is the risk that further publicizing attacks will potentially expose the person targeted to further victimization. Subject to a few limited exceptions, the open court principle requires that parties to a dispute have their names in public record. The open court principle also provides that there should be public access to court documents relating to a case. In 2012, the SCC mitigated the risk of revictimization through publicity for children targeted by sexualized cyberbullying in AB v Bragg Communications Inc.
In that case, a 15-year-old girl had been the target of insulting and sexually explicit online attacks posted by a fake Facebook profile that used her picture, a slightly modified version of her name, and other identifying information. AB was unable to determine who had posted the profile, and she requested that the Nova Scotia Supreme Court (NSSC) order an internet service provider to disclose the subscriber information related to the account used to post the profile. At the same time, she also requested that the NSSC order a publication ban so that the details of her case would not be publicly reported.
Although AB lost her bid for the publication ban in the Nova Scotia courts, she was partially successful at the SCC. The SCC found that young victims of sexualized bullying are particularly vulnerable when their names are republished, and held that allowing them to use initials instead of their full names is necessary to ensure that they may come to the courts for remedies without fear of being revictimized in the press.
Those targeted by untruthful attacks online may be able to recover damages for defamation. In Lord Selkirk School Division v Warnock, a school division and two teachers were awarded damages for false online postings about them made by a former student. To prove that they were defamed, the plaintiffs had to show that (i) the words spoken or written about them would tend to lower their reputations in the eyes of a reasonable person; (ii) the words in fact referred to them; and (iii) the words were communicated to another person.
While not all cases of cyberbullying or cyberviolence involve false statements about the target, in situations where false statements are part of online attacks, a claim for defamation is a possibility. Once defamation is proven, damages are presumed, and can be increased by aggravating circumstances. In the context of internet defamation, aggravating circumstances include recognition of the “ubiquity, universality, and utility of that medium.” In addition, where there has been an “ongoing campaign of defamation and a likelihood that it will continue,” an ongoing order prohibiting further publication can be made.
Subject to certain exceptions, distributing of a copy of another person’s original work without their consent can infringe their copyright, subjecting the distributor to liability under the Copyright Act which applies across Canada. The individual whose copyright is infringed may be entitled to orders enjoining the infringer from continuing to infringe, and damages, among other things. A person whose copyright is infringed may also choose to receive statutory damages of $5000-$20000 for commercial infringements and $100-$5000 for non-commercial infringements.
Where cyberbullying or cyberviolence involves distribution of a copy of an original work by the person targeted (for example, a photo that an individual took of themselves), that person may be able to sue and recover for copyright infringement.
Torts of cyberbullying and non-consensual distribution
In 2013, following the suicide of Canadian teen Rehtaeh Parsons, Nova Scotia enacted the Cyber-safety Act to address and prevent cyberbullying. Section 3(1)(b) of the Act defined “cyberbullying” as:
Any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.
Under the Act, those who engaged in cyberbullying as defined could, among other things, be sued in court for damages. If the attacker was a minor, his or her parents could also be held responsible for any damages awarded, unless the parents could show they had appropriately supervised their child and had reasonably tried to discourage their child from engaging in that behaviour. Online attackers could also be subjected to protection orders issued by a court that could, among other things, prohibit the attacker from continuing to cyberbully, restrict them from contacting the target, subject them to confiscation of their electronic devices, and/or prohibit them from communicating electronically.
The Act was not restricted to protecting minors from cyber attacks and was ultimately struck down as unconstitutional in 2015. In Crouch v Snell, a case involving two adult men who were former business partners, the court found that the Act’s definition of cyberbullying was too broad and therefore unduly restricted freedom of expression under s 2(b) and threatened individuals’ liberty contrary to s 7 of the Canadian Charter of Rights and Freedoms.
In Manitoba, a private member’s bill that proposed introducing parallel legislation in Manitoba in 2012-2013 is no longer being proceeded with following the Crouch decision described above. Instead, Manitoba has taken a different approach by creating a tort of non-consensual distribution of intimate images. Under the Intimate Image Protection Act, “a person who distributes an intimate image of another person knowing that the person depicted in the image did not consent to the distribution, or being reckless as to whether or not that person consented to the distribution, commits a tort against that other person” and can be sued without having to prove that they suffered damage. If a claim is successful, a court can, among other things, order the defendant to pay damages to the plaintiff, account to the plaintiff for any profits they made as a result of the non-consensual distribution, and issue an injunction to stop the defendant from distribution. The Act also empowers the court to make an order prohibiting publication of the name of the plaintiff or any information that might identify them.
Students targeted by bullying may also be able to bring civil lawsuits against schools and school boards that negligently handle their complaints. To prove negligence, the student plaintiff must show, among other things, that his or her school authorities failed to meet the appropriate standard of care: that of a reasonably prudent parent. To be successful, the plaintiff must also show, on a balance of probabilities, that he or she would not have suffered loss “but-for” the school or school board’s negligence.
In 2012, Vania Karam and her teenage son Winston brought a negligence lawsuit against the Ottawa-Carleton District School Board for failing to take action following several serious bullying incidents. Winston Karam, then twelve years old, was assaulted, repeatedly choked, and targeted with racial slurs by two other young boys at Broadview Public School. After months of torment, and despite repeated complaints to school administrators, Karam suffered a panic attack in class and eventually withdrew from the school. At trial, the Ontario Superior Court of Justice held that Winston had been bullied, but did not find that the school had inadequately supervised his attackers. In a 2016 appeal, however, the Court found that the school board had breached the standard of care owed to Karam, and ordered the school board to pay $3000 in damages (to cover costs of homeschooling and self-defence training). In a similar Australian negligence case, a bullied student was awarded over $100,000 in damages after her school failed to uphold its anti-bullying policies and intervene when she was bullied.
 LEAF #Cybermisogyny Report, supra note 18 at 10-12.
 See e.g. Mary Anne Franks, “Expert Report on Non-Consensual Distribution of Intimate Images Submitted to the Canadian Judicial Council Re: Complaint Regarding Associate Chief Justice Lori Douglas” (28 September 2014) at 2.
Privacy Act, RSBC 1996, c 373.
Ibid at ss 1(2), (3).
Ibid at s 1(4).
TKL v TMP, 2016 BCSC 789.
The Intimate Image Protection Act, CCSM c I87.
 The Act defines “intimate image” as “a visual recording of a person made by any means, including a photograph, film or video recording,
(a) in which the person depicted in the image
(i) is nude, or is exposing his or her genital organs or anal region or her breasts, or
(ii) is engaged in explicit sexual activity;
(b) which was recorded in circumstances that gave rise to a reasonable expectation of privacy in respect of the image; and
(c) if the image has been distributed, in which the person depicted in the image retained a reasonable expectation of privacy at the time it was distributed”: Ibid at s 1(1).
Ibid at s 11(1).
Ibid at s 14(1).
Ibid at s 14(2).
Doe 464533 v ND, 2016 ONSC 541.
Ibid at para 1, 64-5, 69.
 To prove breach of confidence, Ms Doe had to show that (i) the information that was used had a “necessary quality of confidence about it”; (ii) the information was initially shared in circumstances indicating an obligation of confidence (e.g. that it was not supposed to be shared with others); and (iii) there was unauthorized use of the information to Ms Doe’s detriment, as she was the person who first communicated it to her ex-boyfriend: Ibid at 21.
 To prove intentional infliction of mental distress, Ms Doe had to show that the defendant’s conduct was (i) flagrant and outrageous; (ii) calculated to produce harm; and (iii) resulted in visible and provable injury: Ibid at 26.
 The Court also held that invasion of privacy could be made out where the private facts publicized would themselves be highly offensive to a reasonable person and were not of concern to the general public: Ibid at 46.
 See Jacqueline Burkell and Jane Bailey, “Revisiting presumptive accessibility: Reconceptualizing the open court principle in an era of online publication” [forthcoming, copy available from author].
AB v Bragg Communications Inc, 2012 SCC 46.
Lord Selkirk School Division v Warnock, 2015 MBQB 195.
Ibid at para 37.
Ibid at para 42, citing Awan v Levant, 2014 ONSC 6890 at para 193.
St Lewis v Rancourt, 2015 ONCA 513 at para 16.
 Exceptions include fair dealing with the purposes of research, private study, education parody or satire: Copyright Act, RSC 1985, c C-42, s 29.
 The original works covered by copyright include dramatic, musical and artistic works of authors who are citizens of a treaty country: Ibid, s 5(1).
Ibid, s 27(1).
Ibid, s 34(1).
Ibid at s 38.1.
 Rehtaeh Parsons died following a suicide attempt after being harassed when a photograph depicting her being sexually assaulted was circulated online: CBC News supra note 21.
Cyber-safety Act, supra note 133.
Ibid, s 3(1)(b).
Ibid, ss 21 and 22.
Ibid, s 8.
Crouch v Snell, 2015 NSSC 340.
Ibid at para 187.
Ibid at para 205.
Charter, supra note 40, s 7.
 Bill 214, The Cyberbullying Prevention Act, 2nd Sess, 40th Leg, Manitoba, 10 July 2013 (subsequently reintroduced as Bill 206, The Cyberbullying Prevention Act, 3rd Sess, 40th Leg, Manitoba, 10 October 2014; as Bill 204, The Cyberbullying Prevention Act, 4th Sess, 40th Leg, Manitoba, 3 December 2014; and as Bill 204, The Cyberbullying Prevention Act, 5th Sess, 40th Leg, Manitoba, 25 February 2016.)
 Intimate Image Protection Act, supra note 213, s 11(1). This language parallels the crime of non-consensual distribution found in s 163.1 of the Criminal Code which is discussed in E. below.
Ibid, s 14(1).
Ibid, s 15.
 Myers v Peel County Board of Education,  2 SCR 21 at 31; Karam v Ottawa-Carleton District School Board, 2014 OJ No 2966 at para 1 [Karam].
Clements v Clements, 2012 SCC 32 at para 46.
Karam, supra note 248.
Ibid at para 37; Mike De Souza, “His Ottawa School Failed to Prevent Racist Bullying. Then They Blamed Him.” National Observer (21 July 2016), online: <www.nationalobserver.com/2016/07/21/his-ottawa-school-failed-stop-racist-bullying-then-they-blamed-him>.
Karam, supra note 248 at paras 51-52.
 Trevor Pritchard, “Family wins lawsuit over claims school board ignored son’s bullying”, CBC News (22 July 2016), online: <www.cbc.ca/news/canada/ottawa/winston-vania-karam-bullying-ocdsb-broadview-1.3691086>.
 Oyston v St Patricks College,  NSWCA 135.