The metaphor of the world wide web as the wild wild west – a frontier of lawlessness – sadly still resonates given the recent tragedies of teens cyberbullied into suicides no one could stop. On Wednesday, however, the federal government announced new criminal cyberbullying legislation, making it clear the long arm of the law is coming to town. Will the new bill make a difference? Much will depend on whether the right sheriffs ride into town as well.
The bill is a good idea: It will be a crime to distribute intimate images on line without the consent of the person(s) depicted. Courts have long recognized our rights to control use of our images, so the new bill is built upon sound precedent. Online distribution of intimate images can be devastating for those victimized, so the bill wisely refers the issue to the criminal courts. And the new bill is a great improvement over trying to fit the round peg of this particular problem into the square hole of our existing child pornography laws.
The new bill does, however, tread a bit too cautiously. It overlooks other destructive ways to cyberbully victims that go beyond uploading their naked pictures. Addressing cyberbullying more comprehensively would mean criminalizing certain types of expression – because bullying online is largely verbal – and this is perhaps why the government has not gone further. Speech crimes are always controversial given our commitment to freedom of expression. But we got the balance right between protecting victims and free expression when we criminalized both hate speech and criminal harassment. So we can and should get the balance right on cyberbullying too.
Then there is the all-important issue of the sheriffs who ride into town to enforce this law if passed: That is where such a law will either succeed in making a real difference in people's lives, or fail as an empty, windswept promise of change that never happened.
First, we must pay attention to numbers. Canada's current cyber-police contingent is far too small to adequately enforce the cyberlaws already on the books. Just dumping more work on the overworked is no recipe for success. Most of us now spend important chunks of our lives online, and that will only increase. It is high time governments treat the cyber-neighbourhood as one of policing's most important beats and give police services a corresponding increase in resources.
Second, becoming an effective cyber-cop takes lots of training, not enough of which is currently available. A good cyber-cop is not just a good investigator. He or she is also a top-drawer geek, well versed in the latest technologies; a sophisticated legal thinker able to walk the fine balance between effective online investigation and invasion of privacy; and an astute reader of human psychology to disentangle the complicated, morally nuanced world of teenage socialization where so much cyber-bullying is born and bred. The new bill will fall short of its objectives without expanded training for those who enforce it.
Finally, balance is crucial. Criminal legislation is not a panacea; it is a blunt instrument of social change, and when it comes to teen behaviour we must be very careful how we wield it. Softer tools should play a prominent role. This new bill wisely asserts that cyberbullying is a crime. But it also complicates online behaviour by inserting the difficult concept of consent into the middle somewhere. So we owe it to our teenagers to help them through this momentous shift in minimum standards for online behaviour by emphasizing education, and fostering peer engagement to normalize the new standards, with the criminal law serving as a catalyst to get attention and emphasize just how serious we are. That is not a job for police and courts alone. It is a job for all of us – parents, teachers, and friends.
So the new cyberbullying bill will make a real difference in people's lives only if there are plenty more sheriffs of all types in town, and only if those sheriffs get the balance right between pulling the trigger, and constructively engaging with the cyber townsfolk.
David Butt is a Toronto-based criminal lawyer, and counsel to the Kids Internet Safety Alliance