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Canada does not have a specific law that deals with online harassment of journalists.  The Criminal Code contains provisions of more general application that can apply to the online environment, such as provisions that deal with cyberbullying and prohibit the non-consensual distribution of intimate images. Cyberstalking may also fall under the offense of “criminal harassment” in the Criminal Code. Courts in Canada appear to have upheld the constitutionality of this provision and do not see it as a violation of the right to freedom of expression in the Canadian Charter of Rights and Freedoms. The courts also appear to be willing to apply the civil action of libel to the online context, which is sometimes described as “cyber-libel.”

I. Freedom of Expression and the Law on Harassment

Attempts to address the problem of online harassment must be balanced against the right to freedom of expression protected by subsection 2(b) of the Canadian Charter of Rights and Freedoms, which provides that everyone has the fundamental freedom of “thought, belief, opinion and expression, including freedom of the press and the media communication.”[1] Fundamental rights, including freedom of expression, are subject to section 1 of the Charter, which allows “reasonable” limits to be placed on those rights.[2] This means that “once an infringement of a Charter right has been established, the courts must decide whether the violation by the government or other institution to which the Charter applies can be considered justified.”[3]  As part of the section 1 analysis, courts must determine whether the limit on the right is “prescribed by law,” “reasonable,” and “demonstrably justified” (applying the test the Supreme Court established in R. v. Oakes[4]), and the law must have a pressing and substantial objective.[5]

For example, Canadian courts have held that section 264 of Canada’s Criminal Code, containing the offense of criminal harassment (discussed below), is constitutional. In 1995, in one of the most authoritative pronouncements on this issue, the Court of Queen’s Bench of Alberta upheld the constitutionality of section 264 and observed that it did not violate the right to freedom of expression under section 2(b) of the Charter as it is “carefully designed to achieve the objective desired”, “suffers from neither overbreadth nor vague­ness”, represents a “a minimal impairment of freedom of that form of expression”, and is “is reasonable and demonstrably justified in a free and democratic society.”[6]

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II. General Protection against Online Harassment

A.  Protecting Canadians from Online Crime Act

The Protecting Canadians from Online Crime Act[7] came into force on March 10, 2015. The Act was introduced by the government to deal with cyberbullying and to prohibit the non-consensual distribution of intimate images.[8] It added section 162.1(1) to Canada’s Criminal Code,[9] making it an offense to “share intimate images of a person without the consent of the person in the image.[10] According to Public Safety Canada,

[t]his law applies to everyone, not just people under 18.The purpose of this offence is to protect the privacy a person has in his or her nudity or sexual activity. With digital technology rapidly changing, there has been an increase of cyberbullying in the form of distributing intimate or sexual images without the consent of the person in the photo or video. This type of behaviour can occur in a variety of situations. Often it appears to be a form of revenge: a person has willingly shared an intimate image of themselves with a boyfriend or girlfriend, and when the relationship ends, the partner may distribute those photos in what is sometimes called ‘revenge porn’. Whatever the motivation, the impact of this kind of cyberbullying can be devastating to a person’s self-esteem, reputation and mental health. In some cases, these acts may have played a part in teens taking their own lives.[11]

Judges have the “authority to order the removal of intimate images from the Internet if the images were posted without the consent of the person or persons in the image.”[12]

An “intimate image” is defined under section 162.1(2) as an “image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region or breast. Furthermore, the image would have to be one where the person depicted had a reasonable expectation of privacy at the time of the recording and had not relinquished his or her privacy interest at the time of the offence.”[13]

Anyone convicted of distributing an intimate image without consent could face the following punishments:

  • They could be imprisoned for up to five years;
  • Their computer, cell phone or other device used to share the image could be seized; and
  • They could be ordered to reimburse the victim for costs incurred in removing the intimate image from the Internet or elsewhere.[14]

The law also replaced sections 371 and 372 of the Criminal Code with the following sections to deal with cyberbullying:

Message in false name

371. Everyone who, with intent to defraud, causes a message to be sent as if it were sent under the authority of another person, knowing that it is not sent under that authority and with intent that it should be acted on as if it were, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

False information

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.

Punishment

Everyone who commits an offence under this section is

(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) guilty of an offence punishable on summary conviction.[15]

B. Other Criminal Code Provisions that May Apply to the Online Environment

Several other Criminal Code offenses also deal with bullying and harassment and may apply to the online environment depending on the “exact nature of the behavior.”[16] Canada does not have a specific criminal law dealing with cyberstalking (also known as “online harassment”).[17] However, cyberstalking appears to also fall under section 264 of the Code, containing the offense of “criminal harassment”[18]:

Criminal harassment

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

Prohibited conduct

(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

Punishment

(3) Every person who contravenes this section is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.[19]

The Department of Justice Canada describes contacting a person “on the Internet or through constant e-mail messages” as an example of criminal harassment.[20]  

Other offenses in the Criminal Code that may be relevant to online harassment include:

  • Uttering threats (section 264.1)
  • Intimidation (section 423.1)
  • Mischief in relation to computer data (section 430(1.1))
  • Unauthorized use of computer (section 342.1)
  • Identity fraud (section 403)
  • Extortion (section 346(1))
  • False messages, indecent or harassing telephone calls
  • Counselling suicide (section 241(1)(a))
  • Public Incitement of hatred (section 319(1))
  • Willful promotion of hatred (section 319(2))
  • Defamatory libel (sections 297-301)[21]

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III. Protection against Online Harassment of Journalists

The only provision in the Criminal Code that seems to be specifically relevant to the harassment of journalists is the offense of intimidation of a journalist by a criminal organization:

Intimidation of a justice system participant or a journalist

423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in

(a) a group of persons or the general public in order to impede the administration of criminal justice;

(b) a justice system participant in order to impede him or her in the performance of his or her duties; or

(c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.

Punishment

(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years.[22]

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IV. Defamation Law

In Canada, defamation law varies from province to province and can be subdivided into libel and slander.[23] In Ontario, for example, the law is found in the Libel and Slander Act.[24] The courts in Canada appear to be quite willing to apply the civil action of libel in the online context, which is sometimes described as “cyber-libel,” to “hold responsible anyone who uses the Internet to defame others, even if the defamer is outside the country.”[25] Cyber-libel is a term used “when someone has posted or e-mailed a statement that is untrue and damaging relating to another individual on the Internet, including in message boards, bulletin boards, blogs, chat rooms, personal websites, social media, social networking sites, or other published articles.”[26] One recent Ontario case looks at the unique aspect of internet defamation and damages:

This leads to an additional, key consideration.  This is an Internet defamation case.  As this court held in Barrick, at para. 28, the pernicious effect of defamation on the Internet, or “cyber libel”, distinguishes it, for the purposes of damages, from defamation in another medium.  Consequently, while the traditional factors to be considered in determining general damages for defamation remain relevant (for instance, the plaintiff’s conduct, position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any apology or retraction, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances: Hill, at para. 185), they must be examined in light of the Internet context of the offending conduct.  Justice Blair explained in Barrick, at para. 31:

[O]f the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully.  Communication via the Internet is instantaneous, seamless, inter-active, blunt, borderless and far-reaching.  It is also impersonal and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed.  [Citation omitted.]

He continued, at para. 34:

It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility.  The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.[27]

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V. Reported Cases

No court cases were located involving online harassment or disinformation campaigns against journalists in Canada. A 2016 case, R. v. Elliott,[28] was notable as the first criminal harassment case in Canada involving Twitter. In that case, the Ontario Court of Justice found a Toronto man not guilty of criminal harassing two feminist activists on the internet.[29]

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Tariq Ahmad
Foreign Law Specialist
September 2019


[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (1982), c. 11 (U.K.), § 2(b), https://perma.cc/2SZZ-TRYJ.

[2] Julian Walker, Hate Speech and Freedom of Expression: Legal Boundaries in Canada 3 (Pub. No. 2018-25-E, Library of Parliament, June 29, 2018), https://perma.cc/8JPB-BMJ9

[3] Id.

[5] Department of Justice, Charterpedia: Section 1 – Reasonable Limits, https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html (last updated Apr. 25, 2019), https://perma.cc/RL54-3T89.

[6] R. v. Sillipp, 1995 CanLII 5591 (AB QB), https://perma.cc/SP2M-LQWU.

[7] Protecting Canadians from Online Crime Act S.C. 2014, c. 31, https://perma.cc/4893-TG8W.

[8] What Are the Potential Legal Consequences of Cyberbullying?, Public Safety Canada, https://perma.cc/NL4R-9QKN.  

[9] Criminal Code, R.S.C., 1985, c. C-46, https://perma.cc/GT99-FMQF.

[10] Public Safety Canada, supra note 8.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Protecting Canadians from Online Crime Act S.C. 2014, § 18 (replacing sections 371 and 372 of the Criminal Code).

[16] Public Safety Canada, supra note 8.

[17] Cyberstalking, University of New Brunswick, https://perma.cc/KGT6-4DXP.

[18] Alexia Kapralos, What Can I Do if I’m Being Cyber-stalked?, FindLaw Canada (Jan. 24, 2018), https://perma.cc/2ARE-G79C.

[19] Criminal Code, R.S.C., 1985, c. C-46, § 264.

[20] Department of Justice Canada, Stalking is a Crime Called Criminal Harassment 2 (2003), https://perma.cc/XXY5-VL7J.

[21] Public Safety Canada, supra note 8.

[22] Criminal Code, R.S.C., 1985, c. C-46, § 423.1.

[23] Defamation, Libel and Slander: What Are My Rights To Free Expression?, Canadian Journalists For Free Expression (CJFE) (June 15, 2015), https://perma.cc/JV6U-ZBC7.

[24] Libel and Slander Act, R.S.O. 1990, c. L.12, https://perma.cc/9AHT-U57A.

[25] Defamation Laws (Cyber-libel) and the Internet, Legal Line, https://perma.cc/K4SU-FLGU.

[26] Defamation in the Internet Age: The Law and Social Media, McCague Borlack (June 2017), https://perma.cc/QB3G-8W3Q.

[27] Rutman v. Rabinowitz, 2018 ONCA 80 (CanLII), ¶¶ 68 & 69, https://perma.cc/35SR-XT34, citing Barrick Gold Corporation v. Lopehandia et al., 71 O.R. (3d) 416, ¶¶ 31 & 34, https://perma.cc/N47B-EBQD.

[28] R. v. Elliott, 2016 ONCJ 35, https://perma.cc/XH4D-YFUW.

[29] See Toronto Man Acquitted In Canada’s First Criminal Harassment Case Involving Twitter, Gelman & Associates,https://perma.cc/424Q-FFDX.

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Last Updated: 12/30/2020