Cyberbullying and the Non-consensual Distribution of Intimate Images

Annex 2: International Legislative Responses to Cyberbullying and Non-Consensual Distribution of Intimate Images

I. Cyberbullying

United States

In 2010, Arkansas passed a new criminal offence (class B misdemeanour) of cyberbullying Footnote 41 which criminalizes the transmission, sending, or posting of a communication by electronic means with the purpose of frightening, coercing, intimidating, threatening, abusing, harassing, or alarming another person if this action was in furtherance of severe, repeated, or hostile behaviour toward the other person. This offence is punishable by up to 90 days imprisonment.

Kentucky has also enacted a class B misdemeanour offence of "harassing communications" which prohibits electronic communication with the intention to intimidate, harass, annoy, or alarm another person. This offence only applies to students who harass other students. Footnote 42 This offence is punishable by up to 90 days imprisonment and a $250 fine.

Louisiana also criminalizes cyberbullying a person under the age of 18. Footnote 43 The offence is made out if there is transmission of any electronic textual, visual, written, or oral communication with the malicious and wilful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen. The law also creates exceptions for Internet and telecommunication providers, as well as for "religious free speech" under the Louisiana Constitution and is punishable by up to 6 months imprisonment and/or a $500 fine.

In May 2013, Maryland passed "Grace's Law" which makes it an offence to use electronic communication to maliciously engage in a course of conduct that inflicts serious emotional distress on a minor or places a minor in reasonable fear of death or serious bodily injury. Footnote 44 The offence is punishable by up to 1 year in prison and/or $500 fine. The law excludes communications that are for "peaceable activity intended to express a political view or provide information to others."

Mississippi does not have an offence of cyberbullying, but does have a law making it an offence to impersonate someone on-line for the purpose of harming, intimidating, threatening or defrauding them. Footnote 45 This offence is punishable by imprisonment between 10 days and 1 year and/or a fine of between $250-$1,000.

In 2008, Missouri amended its criminal harassment offence to include cyberbullying-type behaviour. Footnote 46 Harassment now includes communicating with a person under 17 years of age without good cause, recklessly frightening, intimidating or causing emotional distress and, without good cause, engaging in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person. The offence further requires that the person actually frightens, intimidates or causes emotional distress.

In Montana, an offence of "violating privacy in communications" covers not only the recording of conversations between persons without consent, but also makes it illegal to harass people using electronic communications. Footnote 47

Nevada has a dedicated cyberbullying law that makes it an explicit criminal offence to engage in such conduct towards pupils or employees of a school district through threats of bodily harm or death with the intent to intimidate, harass, frighten, alarm, or distress the victim. Footnote 48 The offence is punishable by up to 1 year imprisonment and/or a $2,000 fine.

Finally, North Carolina has a very detailed offence of cyberbullying which prohibits activity such as building a fake website, posing as a minor in an Internet chat room, posting a real or doctored image of a minor on the Internet with the intent to harass the minor or their parents, and making any statement, whether true or false, intending to immediately provoke, and that is likely to provoke, any third party to stalk or harass a minor. Footnote 49 The penalty for this offence depends on whether the offender is a minor or an adult. In the case of minors, it is punishable by up to 60 days imprisonment. If the accused pleads guilty, they may instead be discharged and placed on probation. If the offender is an adult, the offence may be punishable by up to 120 days imprisonment.

Australia (Commonwealth)

The model code section 474.17 of the Criminal Code Act 1995 (Cth) makes it an offence to use a carriage service-including the Internet, social media services or a telephone-in such a way that reasonable persons would regard it as being, in all the circumstances, menacing, harassing or offensive. The reasonable person test is an objective test, which allows community standards and common sense to be considered in determining whether the conduct is in fact menacing, harassing or offensive. This offence is punishable by up to three years imprisonment.

New Zealand

In response to the New Zealand Law Commission Report released last year, Footnote 50 the Minister of Justice has reportedly announced Footnote 51 that she intends to introduce legislation that would create two new criminal offences specifically intended to address cyberbullying. Footnote 52 While the details of the legislation are not yet known, the Law Reform Commission recommended creating offences of inciting suicide and "using a communications device to cause harm" which would prohibit the sending of messages to another person that are grossly offensive, indecent, obscene, menacing or knowingly false, and intended to cause substantial emotional distress to the recipient. The Minister of Justice has indicated that she intends to introduce legislation similar to that which was recommended by the Law Commission, but she has not yet done so.

II. Non-consensual Distribution of Intimate Images

United States

The State of New Jersey has created an offence Footnote 53 which prohibits the distribution of photos or videos of nude persons or persons whose intimate parts are exposed or who are engaging in sexual conduct, unless the person depicted in the photo consents to the disclosure, punishable by between three and five years. Statutory defences to this offence are provided, including consent of the person and another lawful purpose (e.g. corrections officers sharing such videos internally for security or training purposes, or disclosing videos of nude persons in change rooms to law enforcement for the purpose of investigating shoplifting).

Australia

Several Australian states have enacted various laws which deal with elements of the non-consensual distribution of intimate images, but many of the offences are much broader in scope.

Victoria State recently amended its stalking offence Footnote 54 to encompass bullying conduct, including non-consensual distribution of intimate images. While not created specifically to address the non-consensual distribution of intimate images, the scope of the prohibited behaviour is broad and includes publishing on the Internet "other material relating to the victim" and acting in any way that could reasonably be expected to cause mental harm to the victim. This offence also deems that the requisite intent is met if the offender knows or in all the particular circumstances ought to have known that the conduct would likely cause harm or arouse such apprehension of harm and that the harm actually results. This offence is punishable by a maximum term of 10 years imprisonment.

Queensland's Criminal Code Act 1899 Footnote 55 contains an offence which prohibits the distribution of prohibited visual recordings of another person without the consent of the subject. As this law prohibits distribution without consent (as opposed to making the recording without consent), it seems that it would still apply even if the subject consented to the recording being made. This offence is punishable by up to 2 years imprisonment.

Australia's Capital Territory's stalking provision Footnote 56 appears to also address distribution of intimate images, albeit not as directly. Stalking in this offence requires an intent, or recklessness, to cause apprehension, fear of harm, or harassment of the victim (which includes psychological harm), as well as at least two occasions of a prohibited behaviour, including: sending electronic messages about the stalked person to anybody else; or making electronic messages about the stalked person available to anybody. Electronic messages about the stalked person could include posts to social media or other websites, as well as any such photo attachments to those messages.

On May 9, 2013, South Australia enacted a new offence distribution of an invasive image. Footnote 57 An "invasive image" is defined as a moving or still image of a person engaged in a private act (a sexual act not ordinarily done in pubic or using the toilet) or in a state of undress such that the person's bare genital or anal region is visible. An invasive image does not include an image of a person under the age of 16. The offence is made out if the person distributed an invasive image, knowingly or with reason to believe that the other person did not consent to the distribution. The maximum penalty is 2 years imprisonment or a $10,000 fine. There are three available statutory defences: if the distribution was connected to law enforcement, if it was for a medical, legal or scientific purpose, or if the image was filmed by a licensed private investigator.

New Zealand

New Zealand's Crimes Act 1961 Footnote 58 contains a provision prohibiting the publication, import/export, sale, or distribution of "intimate visual recordings." However, the definition of this term appears to exclude recordings that are made with the consent of the subject, which renders it more similar in nature to Canada's voyeurism offence. The Law Reform Commission has recently recommended amending this offence to have it apply to persons who make consensual intimate images and then distribute them without the consent of the person depicted. Footnote 59 The Government has indicated they are not moving forward with this recommendation on the basis that this behaviour will be covered by other offences, what is not covered should be dealt with under civil remedies, and it was an "uncomfortable fit" with the other covert filming offences which require a lack of knowledge of the filming itself. Footnote 60

Germany

Germany has an offence of "violation of intimate privacy by taking photographs." Footnote 61 This offence covers three types of behaviour, the first two being similar to Canada's voyeurism offence. Footnote 62 The third prohibits behaviour of unlawfully and knowingly making available to third parties a picture that was created with the consent of another person located in a dwelling or a room especially protected from view and thereby violating his intimate privacy.

United Kingdom

The Communications Act, 2003 Footnote 63 creates an offence that could potentially apply to certain instances of distributing intimate images.

Specifically, that statute makes it an offence to send, or cause to be sent, by means of public electronic communications "a message or other matter that is grossly offensive or of an indecent, obscene or menacing character." This offence is punishable on summary conviction with up to six months imprisonment and/or a fine.

Additionally, the UK has recently promulgated a revised definition of "stalking" in the Protection of Freedoms Act 2012 Footnote 64) that may also allow for prosecutions for distributing intimate images of another person online. That law defines stalking as:

[...] a course of conduct, which is in breach of section 1(1) of the Protection from Harassment Act 1997 (i.e., a course of conduct which amounts to harassment) and the course of conduct amounts to stalking.

The Protection from Harassment Act 1997 Footnote 65 lists a number of behaviours that are indicia of stalking, including (in addition to following, spying, etc.):

[...]

(c) publishing any statement or other material relating or purporting to relate to a person, or purporting to originate from a person,
(d) monitoring the use by a person of the Internet, email or any other form of electronic communication.

The above two indicia, (i.e., conduct prohibited by the Protection from Harassment Act 1997 and publishing any statement, etc..) if coupled with the other elements necessary for criminal harassment in UK law (i.e., defendant knew or ought to have known the conduct would harass the victim), could act to criminalize the distribution of intimate images, which would meet the definition of "material… relating or purporting to relate to a person."

Stalking is punishable as a summary conviction offence in the UK (up to six months imprisonment and/or a fine), though an aggravated form of the offence is also available where the conduct "causes another serious alarm or distress which has a substantial adverse effect on his or her usual day-to-day activities." In such a case, stalking could be prosecuted as an indictable offence punishable by up to 5 years imprisonment.