Thursday, November 21, 2013

Bill C-13 Does Not Address Online Bullying

In spite of the Harper Government's public claims to the contrary, Bill C-13 has very little to do with online bullying.

It talks about a whole lot of things, but only a small fraction has anything to do with online bullying.  At its core, it adds a few changes to essentially broaden the definition of child pornography and pornography by creating a definition for "intimate images".  This is not particularly meaningful in the realm of online bullying.

The very definition of an "intimate image" is highly problematic at the best of times:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty 
(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or(b) of an offence punishable on summary conviction. 
Definition of “intimate image”(2) In this section, “intimate image” means a visual recording of a person made by any means including a photographic, film or video recording,(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.
Fundamentally, this sounds like an attempt (and a very bad one) to define what constitutes an "obscene" image rather than an "intimate" image.  Using this definition, some of the pictures we have seen of Rob Ford could be construed to be "intimate images", and yet the publication of those very images have provided valuable public insight into the character of this man who would be mayor and claims further to have designs on the Prime Minister's office.  Does Rob Ford peeing on a bush in a parking lot have a "reasonable expectation of privacy"?

Perhaps more troubling is the fact that this law gives the police extraordinary powers to seize people's computers "on the balance of probabilities", among other things.

Further, this law is actually remarkably naive in terms of its provisions regarding the removal of an image from websites.  Once an image is posted in a public forum, it can spread through the internet in  a completely untraceable manner.  Simply put, once the picture is posted, the damage is done.  Further, while you can request that an image be removed from a specific site, outside of Canada the Canadian government has very little ability to enforce removal orders.

What I find even more troubling is that the law does very little to address the notion of making harassment a criminal offence.  While Amanda Todd and Rehtaeh Parsons were victimized by people passing around pictures of them, the government seems to have overlooked that it is not just the picture which is the issue, but the messages that were associated with those pictures and the context in which they were distributed and whether they were directed at these unfortunate girls.

These girls did not kill themselves over the pictures, but over the treatment that they received at the hands of those who accessed those pictures and then addressed them.  The Internet is a harsh place, and it is one which will continue to be so, regardless of this law.  A quick search through the legislation mentions "harass" exactly once.

372. (1) Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication. 
Indecent communications(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.Harassing communications(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.
In many respects, this is the only part of the legislation which begins to address the kinds of behaviour that actually turn into bullying.  Unfortunately, I don't believe that this is an effective tool in the management of bullying in part because it is at the same time both overly broad in terms of the kinds of communication and overly narrow in that it specifically talks about it being "knowingly false".

Bullying is a very subtle social behaviour, and it often operates on the principle of "wrapping a lie with just a little bit of truth".  Remember that people often say things which get turned against them by the bully - it may be perfectly true as a statement, but when couched in the right words can be used as a tool against that person.

Further, the bill itself appears to do very little to identify the form and structure of bullying practices in the world of the internet.  Perhaps even more unsettling is that it also fails to recognize that much of the bullying often involves youth.  (and certainly the high profile cases do)

Sadly, Bill C-13 seems to be more of a resurrection of the kind of overreaching legislation that made Toews' "Internet Surveillance" Bill C-30 so unpalatable to Canadians.  Ultimately it expands the powers of the police to engage in search and seizure of people's activities while doing precious little to effectively identify the kinds of activities which comprise bullying behaviour.

... and more detailed analysis by a lawyer is here:


David James said...

Weak sauce, blogger.

First, there's a public interest defense that would definitely capture images of public figures in compromising positions (section 162.1(3)). That's the obvious intent of that provision.

Second, Rob Ford pissing in public is in public and he clearly does not have a reasonable expectation of privacy at the time the picture is taken (section 162.1(2)(b)). That's the obvious intent of that provision.

Third, obscenity laws are about society's disgust in the content of the image (e.g. obscene publications, child pornography), while this law is about society's disgust in people breaching other people's privacy.

MgS said...

Apparently you missed the core of my argument - namely that C-13 DOES NOT address bullying per se.

With respect to your particular counterpoints:

1) The "public interest" defence is inadequately defined, and as a result ends up leaving the onus on the accused to establish that their actions "were in the public interest".

2) Rob Ford's activities were simply an example. I'm quite sure that Mr. Ford would argue that because he was "by a bush" or some such that he had an expectation of privacy. Again, the definitions used are lacking sufficient clarity to be meaningfully understood as to the intent of the law.

3) With respect to obscenity laws, you have hit on precisely the point of my argument. There have been numerous attempts to define "obscene" in law in this country, and they have all had significant problems with interpretation when challenged. This law suffers very much the same problems.

4) As others have noted, most of what is in this legislation is a resurrection of Vic Toews' "Spy on Everything" legislation of a couple of years ago.

If it were truly about dealing with bullying, it would be strengthening the aspects of the laws related to harassment. The term "harass" appears exactly twice in the text of the legislation, and not in a context where the amendment significantly bolsters and addresses the issues of bullying.