New cyberbullying bill resurrects many police powers from scrapped "lawful access" bill

November 21, 2013

A new proposed federal law would make it a crime to distribute “intimate images” without the consent of the subject of those images; however, the new law would also create new police powers and procedures that go well beyond the context of cyberbullying to cover a broad range of online activity associated with other crimes.  The breadth of the cyberbullying offence may also raise concerns for news media about possible criminal liability for reporting certain stories.

In fact the bill, introduced as Bill C-13 and entitled the Protecting Canadians from Online Crime Act, appears to resurrect many of the provisions from the last incarnation of the failed lawful access bill, Bill C-30.  Bill C-13 seems to reintroduce much of what had been Part 2 of the earlier bill, including many of the proposed new and amended powers respecting the preservation and production of various types of electronic data, including the provision by telecommunications service providers of transmission or metadata associated with electronic communications, as well as setting out the procedures through which these orders would be obtained.

The new bill also reintroduces the provision from the previous bill that would allow police to obtain from a judge an order allowing for the tracking of an individual’s movements or location by tracking any device carried or worn by the individual, including their wireless phone.  Similarly, the bill would allow for the issuance of an order authorizing the use of a tracking device to track the location or movements of a thing, including a vehicle.

Significantly, the new bill does not contain the two most contentious provisions from Bill C-30: the requirement that telecommunications service providers ensure that their networks and services are capable of interception by law enforcement and national security agencies, and the requirement that telecommunications service providers provide those agencies with a range of customer identifying information on request, without a warrant.  Significant public opposition to these aspects of the previous bill caused the government to withdraw Bill C-30 earlier this year, further indicating that it would not be resurrecting those controversial provisions.

The new cyberbullying offences appear to be primarily targeted at online intimidation and harassment by individuals or groups, such as through viral circulation of images through social media.  By criminalizing this behaviour, and making such offences subject to penalties of up to 5 years in jail, the new offences will, for many, be welcome additions to the Criminal Code

However, the breadth and vagueness of the new cyberbullying offence will also no doubt raise serious concerns for media, since news reports containing somewhat vaguely defined “intimate images” may violate the law, unless that reporting “serves the public good”, as determined by the courts, regardless of the motives of the reporter or media outlet.

It is expected that these and other issues will be raised during debate and legislative committee consideration of the proposed law.

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