Cyberbully law a good start, but enforcement

is a job for all of us

DAVID BUTT
Special to The Globe and Mail
Published Thursday, Nov. 21 2013, 7:46 AM EST
Last updated Thursday, Nov. 21 2013, 9:03 AM EST

Minister of Justice Peter MacKay arrives to

make an announcement on Parliament Hill in
Ottawa on Wednesday, Nov. 20, 2013.
(Sean Kilpatrick/THE CANADIAN PRESS)

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, cyber-bullied into suicides no one could stop.
On Wednesday, however, the federal government announced new criminal cyber-bullying
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
cyber-bully victims that go beyond uploading their naked pictures. Addressing cyber-bullying
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 cyber-bullying
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 peoples lives,
or fail as an empty, windswept promise of change that never happened.

First, we must pay attention to numbers. Canadas current cyber-police contingent is far too
small to adequately enforce the cyber-laws 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
policings 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 cyber-bullying 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 cyber-bullying bill will make a real difference in peoples 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