The incorporation of technology in our daily lives has led to many positive and negative issues. In large part, this is because the technology was publicly released before the law considered the impacts on things like privacy, mental health, the criminal element, etc. Unfortunately, that has meant that in some cases, things that were considered crimes when done in person, no longer fit a category when they were done digitally. Several laws have been developed and brought forward…Although most people don’t really know how to respond to a cyberstalker or digital harassment.
Making the matter more complex, technology has rapidly evolved and spread. Especially through its adoption by our youth, efforts to “fit in” by an older demographic and a growing subset of “novice hackers” vs. unprepared security and users. One of the areas that we see these problems in mass, is family law. Whether you’re going through a bad breakup, legal separation or a nasty divorce, the likelihood of being cyberstalked or harassed digitally is very high. In some cases, the temptation to become a cyberstalker can be even higher.
What is a Cyberstalker?
Over the years the term “Cyberstalker” has meant a few different things. Most commonly a “Cyberstalker” is a person that uses a digital device or electronic medium to contact, follow, creep, monitor, exploit, directly or indirectly harass or vex another person or persons.
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Some people think that “a little innocent peek” at their ex’s social media, phone records, text messages, or other digital footprint is okay. It’s not. The term “ex” should have been the best hint that there’s nothing you need to see there. Furthermore, some people think that it’s okay to message an ex or make comments online. It’s not. Lastly, some people feel they have some sort of justification to share compromising images or videos of an ex. Especially if they’ve been hurt by that ex. IT IS NOT…EVER! That part deserves noting.
Compromising Information? “Intimate Images”
Some people think there is a grey area of what is “compromising“. There isn’t. It’s pretty simple. An “intimate image” is defined 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. They did not relinquish his or her privacy interest at the time of the offence.
This is where it gets tricky… some people believe that if the “image(s) or video(s)” they made during a relationship were consentual, then they must have the right or ownership of them to distribute them. That is incorrect. Having access to a photo or video, (even if you made it) is not by default confirmation of ownership of that photo or image. Anything that was made under an expectation of privacy could still warrant charges if it’s shared after the relationship has ended.
The Law Concerning Cyberstalking
Criminal Code Section 264 (1) (Criminal Harassment/Cyberstalking) clearly sets out “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 (see definition below) 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.“
Section 264 (2) The conduct mentioned in subsection (1) above consists of
- repeatedly following from place to place the other person or anyone known to them;
- repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
- 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
- engaging in threatening conduct directed at the other person or any member of their family.
What To Do? How To Stop It?
Unfortunately, it can be very difficult to get the ball rolling to stop a cyberstalker or cyberbully. Often it requires a competent legal team. It can require competent private investigators and/or digital forensic analysts, and even if you “know” who did it – it could be a real challenge to prove that in court. So, the best steps are as follows:
- Tell Someone You Trust. If you’re a young person in a relationship this may mean going to a responsible adult. If you’re and adult it may mean seeking out a legal team or other qualified person.
- Document Everything. It’s really an easy task but you’ll want to make notes of when the image was made (if known), why it was made, who was the intended receiver, were they ever granted permission to “share it” (if so, with whom?). When did the relationship end? Did the other person ever get told to delete the image? etc.
- Report It. Did it take place through social media or any network? Contact the social media provider or network provider and report the image(s)/video(s)/comment(s) as inappropriate or illegal. Each of these providers have a due diligence to assist you in removing the offensive material. Or at least providing certain related information to the authorities.
- Report It To Police. If all else fails or if you are having too much difficulty navigating the system on your own, contact your local police and officially report the incident(s). This may lead to criminal charges against the other party. However, it is in some cases the only option to remove the material from the internet.