- What Is Cyberstalking? Definition and Scope
- Is Cyberstalking a Crime?
- Legal Consequences of Cyberstalking
With the world becoming more and more remote, it is no wonder that many crimes have transitioned from being purely offline to cyberspace. In this context, the offence of online harassment in Canada is particularly worrisome due to easy access to technology and the mask of anonymity, inciting those who would not dare to inflict harassment in the real world to commit it on the Internet.
Similar to offline harassment, charges for cyberstalking can lead to severe criminal and civil penalties and call for a good criminal lawyer and nuanced legal defence strategy. Below, we discuss if cyberstalking or cyberbullying is illegal, how cyberstalking, online harassment and cyberbullying are viewed under Canadian criminal law and the legal consequences of these cyber crimes.
Definition and Scope: What Is Cyberstalking
Simply put, cyberstalking is using technology, computers and the Internet for criminally harassing or stalking someone. Instead of uttering threats, cyberstalking happens when the perpetrator repeatedly attempts to approach or communicate with the victim using technology in a way that makes the victim feel reasonably fearful.
In cases of cyber intimidation, the offender can use various technological tools and methods, ranging from social media channels, emails and messengers to hidden cameras, sending viruses to the victim’s computers, or creating a website about the victim to send malicious messages or explicit visuals. Many cases of cyber harassment present a particular challenge to police and prosecution due to the technical savvy of the perpetrators, anonymity online and offences committed across jurisdictions.
What Is Online Harassment and Cyberstalking?
The terms cyberstalking and cyber harassment are used interchangeably to refer to harassment via the Internet in either of the following ways:
- directly communicating with the victim through email or messages,
- publishing offensive information or explicit images about the victim,
- maliciously interfering with the victim’s computer,
- acting in any other way to repeatedly approach the victim, resulting in reasonable fear.
What Is Cyberbullying?
In contrast, cyberbullying refers to using communication technologies to support repeated, malicious and deliberate behaviour by groups or individuals. One of the most common forms of cyberbullying in Canada involves broadcasting harmful information to students, often leading to bullying behaviour being transferred from cyberspace to offline.
With youth being the most active users of social media and technology, the cyberstalking statistics among this group look particularly appalling. According to a 2019 report by Statistics Canada published in 2023, 1 in 4 youth aged 12 to 17 reported online bullying in the previous year. While cyber harassment and cyberbullying have a considerable overlap in many instances, both of these offences are particularly detrimental due to the victim’s inability to escape intimidation online and the around-the-clock nature of online communication.
Is Cyberstalking a Crime?
The Criminal Code of Canada does not have a specific definition for cyberstalking. Instead, the cases involving harassment or bullying someone on the Internet can be prosecuted under other sections of the Criminal Code for stalking and other crimes, for example:
- Section 162 (1), Voyeurism,
- Section 162 (2), Non-consensual distribution of explicit images,
- Section 163 (1), Obscene materials,
- Section 241, Counselling suicide,
- Section 264.1, Criminal harassment,
- Section 298 (1) Defamatory libel,
- Section 342.1 (1), Unauthorized use of the computer,
- Section 346, Extortion,
- Section 372 (1), Conveying false Information
- Section 402.2 (1), Identity theft
- Section 403 (1), Identity fraud
- Section 423 )(1) Intimidation
- Section 430 (1.1) Mischief in relation to computer data
Since there is no doubt that stalking is a crime in Canada, shifting to cyber harassment does not make someone immune to prosecution, even though the crime of cyberstalking is not directly defined in the Criminal Code. The Crown has multiple paths for how to charge someone with cyber harassment in Ontario based on the existing sections of the Code, even without harassment laws for text messages in Canada or similar provisions.
In an attempt to protect Canadian citizens online, the Ontario government continuously introduces new regulations addressing novel threats. Thus, on May 13, 2024, the government proposed The Strengthening Cyber Security and Building Trust in the Public Sector Act, 2024, to strengthen safeguards for children’s personal information collected in health care, education and other sectors. The new legislation is intended to provide the right tools to quickly respond to potential privacy breaches and ensure that individuals can “freely and safely participate and thrive online.”
Legal Consequences of Cyberstalking
Similar to offline criminal harassment, cyberstalking in Canada is severely prosecuted, with potential penalties exceeding those for direct assault. For example, someone convicted of criminal harassment via the Internet or computer under Section 264 (1) of the Criminal Code can face up to 10 years in prison if the Crown chooses to proceed by indictment or two years less a day jail time and/or fine up to $5,000 in summary conviction.
In other situations where harassment charges do not apply, the offender can face another set of criminal consequences, depending on the individual circumstances of the offence. For example, someone using computers or technology to stalk or bully others online may face charges for voyeurism, distribution of obscene materials, defamation, intimidation, identity fraud and theft and multiple other offences with different criminal consequences. Needless to say, a conviction for cyberstalking in Canada goes with a criminal record with far-reaching repercussions for employment, housing and social opportunities.
Last but not least, the perpetrators of harassment on the Internet can face serious civil consequences. In 2021, Justice Corbett of the Ontario Superior Court recognized the tort of Harassment in Internet Communications in Caplan v. Atas, 2021 ONSC 670. In a case involving defamation and harassment, Justice Corbett concluded that the defendant’s misconduct fell within the intersection of civil and criminal law. While the existing laws did not offer sufficient civil remedy to the plaintiffs, the judge held that the tort of internet harassment should exist to provide victims with appropriate recourse.
Conclusion
The police and the Crown prosecutors take cyberstalking, cyber harassment and cyberbullying very seriously due to distress caused by perpetrators as well as the ease of access to technology to commit offences, facilitated by anonymity online. That said, the consequences of a criminal conviction for cyberstalking can be extremely disruptive, including a prison sentence of up to 10 years, followed by a civil damages claim.
Vilkhov Law criminal lawyers in Richmond Hill have years of experience in defending charges of cyberstalking and cyber harassment. For more information and legal assistance, please do not hesitate to contact Vilkhov Law harassment lawyers for a free consultation on your legal options.
