Editor’s Note: This article is a companion to “Consent in Cyberspace,” a feature soon to be released in The Varsity Magazine documenting student experiences with sexual harassment and violations of privacy in online spaces.

Content warning: Descriptions of sexual harassment, mentions of abuse and rape

[dropcap]W[/dropcap]hen a former co-worker sent Fiona* an unsolicited photo of his penis, he told her he was sexually aroused by her negative response.

Dave* was extorted by a scam artist in the Philippines, who threatened to send his naked photos to family members if he did not pay him.

Manuela* was sexually exploited and psychologically abused by a man on an online forum who she believed to be a pedophile. On one occasion, he threatened to rape her.

I documented these experiences, and others, for The Varsity’s winter magazine this year. I spoke with students who received unwanted sexual messages across social media platforms, whose intimate photos were leaked without their consent, and who, in some cases, found themselves within online spaces that made them fear for their safety.

In the magazine, these stories are grouped together under the umbrella of ‘online sexual harassment,’ in acknowledgement of the similarities in power dynamics and victim impact between digital spaces and the real world. Yet many of these cases differ in severity and scope, and these differences are further drawn out when discussing what should be done to address them.

Paths to redress can be unclear when threats operate behind a screen. Whether they opt for formal or informal channels, complainants may run into problems in pursuit of redress.

Online conduct as online crime

Many of the conversations I had with students revealed that they were victimized by conduct that could be criminal.

In 2015, an offence was introduced into the Criminal Code banning the nonconsensual distribution of intimate images. Often colloquially known as ‘revenge porn,’ this offence governs cases when intimate photos or videos are shared with others against complainants’ wishes. Max*, Bethany*, Dave, Chloe*, and many of Indira’s* high school classmates cited having such experiences.

Legally, nonconsensual disclosure is substantially more severe when associated with compulsion or intimidation. Chloe’s ex-girlfriend Evie* threatened to send intimate photos of Chloe to her family if she did not comply with her demands, and ultimately texted pictures of Chloe with her current partner to her mother, obtained from Chloe’s Snapchat Memories that she could still access. Dave was also transparently extorted for money in exchange for confidence that his scam artist would not further breach his privacy. Chloe went to the police, but ultimately decided not to press charges, and the police never managed to track down Dave’s scammer.

I spoke with Constable David Hopkinson, Corporate Communications representative for the Toronto Police Service (TPS). According to Hopkinson, cases like Dave’s and Chloe’s would likely classify as extortion — an offence carrying a maximum potential penalty of life in prison.

When the subjects of explicit materials are under 18, possession and dissemination can carry child pornography charges. At Indira’s high school, her underage female classmates would frequently find themselves victims of sexting leaks. One of Indira’s peers, groomed by an older online user with whom she had developed a relationship, was traumatized when he posted an explicit photo of her to her Facebook wall. The experience Manuela had with the user who abused her after she refused his persistent requests for nudes happened when she was 14 or 15.

Most of my sources reported receiving unwanted sexually explicit messages and photos on online platforms. For communications to constitute criminal harassment, however, Hopkinson emphasizes that they must reflect an intention to inflict harm or physical violence.

“It can’t just be inappropriate [or] aggressive; it has to be threatening,” says Hopkinson. “‘I’m gonna kill you,’ ‘I’m gonna injure you,’ ‘I’m gonna do this or that,’” is a threat, he says.‘“I’m gonna mess your life up’ is not a threat.”

The legal credibility of such threats is complicated by the online sphere. Ray* and Manuela were both threatened with sexual violence by people who lived in different jurisdictions, and whom they never met in person. Despite the emotional turmoil that these messages caused them, a criminal court might not consider their fear reasonable due to that distance.

Individuals victimized by these forms of harassment will continue to seek help from police. Dave had a very positive experience with the TPS, which calmed him down, came to his home to take his report, and stayed in the room while he continued to video chat with the scam artist. Chloe expressed gratitude that the TPS consulted her on what she wished to disclose to her parents, though her frustration at the month-long delay before they took action also led her to seek help through the Royal Canadian Mounted Police.

Much of the onus still remains on victims to bring their cases forward and to protect themselves. Complainants have to wrangle with how the dynamics of consent operate within digital spaces and apply to their unique circumstances, which is particularly important when dealing with the criminal law.

It might seem obvious that the distribution of intimate images is only criminal if done without consent. “When you give somebody the picture, and you’re giving them ownership of it, you’re expressly giving them consent,” says Hopkinson. “Once you share a picture with someone else, you give them the authority to release it, unless you explicitly say, ‘I do not wish you to share these photos.’”

Section 162.1 of the Criminal Code, which deals with publication of intimate images without consent, states that publication or distribution is criminal if the recipient knows the sender does not consent to it, or if they are “reckless as to whether or not” the sender consented.

But senders of intimate photos might not realize that the onus is on them to clearly communicate to recipients that they should not be shared. And not doing so can hurt complainants’ cases — since the recipient has implied ownership of the material unless explicitly denied permission, they also have the authority to do with it what they please. Distribution of what is now ‘yours’ is not criminal.

The same logic applies to unwanted sexual advances. “With regard to unwanted communication, please understand this: a communication is not unwanted until you tell someone it is unwanted,” says Hopkinson. “Until you say to them, ‘I do not want you to contact me anymore,’ they can continue to contact you. They can continue to say whatever.”

“It serves us better and the law better if people are aware that any unwanted communication is something that they should be stopping first,” adds Hopkinson. “They shouldn’t be waiting for the police to come and tell somebody, ‘Don’t have any more contact with me.’ You should be doing it yourself.”

In an ideal world, potential victims would be as diligent as possible about protecting themselves and preparing materials for future investigations. But given the numerous reasons why complainants would hesitate to report their experiences, something about that onus doesn’t sit right.

From victims to plaintiffs

Criminal law has adapted to accommodate online harassment and unwanted disclosure over the years, and it remains an important option, especially in situations when an individual’s safety is at risk. But police forces may be taxed for resources, and complications with the evidentiary record, combined with the high burden of proof required for conviction, means that some complainants may opt for other channels.

Lawyer Molly Reynolds speaks to the potential limitations of the criminal law in addressing certain breaches. In cases of ‘day-to-day’ online harassment, for instance, “even though the victim is suffering a lot of the same consequences to their own wellbeing and to their reputation, they’re unlikely to get much help from the criminal system,” says Reynolds.

Civil litigation can serve as an alternative to criminal proceedings. Compared to the higher burden of proof beyond reasonable doubt in criminal cases, civil suits are decided on a balance of probabilities, and defendants are ordered to pay costs as opposed to correctional penalties. Lawyer Mark Donald says that the civil process can award victims more control over the process, for instance through hiring their own counsel.

[epq-quote align=”align-center”]Civil cases seek to account for such repercussions by calculating financial damages. The problem, however, is quantifying this trauma in an adequate way. [/epq-quote]

A number of torts in Ontario intersect with experiences of online sexual harassment or violations of privacy. For example, the leading precedent on non-consensual disclosure of intimate images in Ontario is Doe 464533 v ND, a case involving a defendant whose intimate images were posted online by a romantic partner without her consent. Reynolds is currently counsel on the Doe case, which has been remitted to trial after the defendant successfully moved to overturn the initial damages awarded.

In Doe, the Ontario Superior Court of Justice recognized the new tort of “publication of private facts” under the existing category of “invasion of privacy.” This tort allows courts to assess damages based on what the defendant did with the information and whether the plaintiff consented.

Deep trauma can come from such egregious privacy violations. After Max had his nudes posted on Tumblr, he experienced psychological distress to the point when his grades suffered and he lost his financial aid. Bethany received an onslaught of additional harassment after a former partner shared her intimate photos with others. When Evie leaked Chloe’s photos to her family, Chloe was forced to tell her father about her sexual orientation.

Civil cases seek to account for such repercussions by calculating financial damages. The problem, however, is quantifying this trauma in an adequate way. Courts continue to grapple with this issue, as it can be difficult to understand the harm to users separated by digital spaces. Both Donald and Reynolds speak to the difficulties courts have experienced when trying to calculate emotional or psychological damages.

Much like criminal prosecution, there are substantial costs and delays involved with civil litigation as well. Lacking the benefit of police-led investigations, lawyers often go to great lengths to navigate the elements of anonymity that often underlie online interactions, including entering into legal battles over information with data giants like Rogers and Bell.

Not only does this bring legal fees into the thousands of dollars, it also comes with unfettered implications for privacy. Under what circumstances can user information be disclosed and used to trace defendants’ digital footprints?

Successful litigation can lead to immense victories for plaintiffs and financial damages that can work towards accounting for mental turmoil or distress. But many complainants are not in a position to pursue civil claims, especially students who are unable to pay for counsel.

When asked whether litigation is a better alternative to criminal prosecution, Reynolds points to the limitations of civil judgments in addressing online harms. Civil litigation, she says, “doesn’t help stop the conduct if there’s ongoing harassment [and] it doesn’t help stop the spread of images or videos online by other websites or bloggers or posters. Even if you’re able to obtain an injunction to prevent any further posting by the defendant, it may do very little to actually mitigate the consequences of the initial posting because of the way the internet works.”

However, Reynolds acknowledges that in some cases, civil litigation is the only option. “It’s not to say that it shouldn’t be pursued,” she adds. “By any means, something is better than nothing.”

Remedy through informal channels

There are certainly benefits to pursuing redress through formal channels. But doing so can be resource-dependent and bodes no guarantee of efficacy — especially when complainants are unsure whether their experiences are adequately covered under the law.

One way some complainants may find redress is if the incident takes place within the workplace. Fiona received unwanted sexual advances from a co-worker shortly after her employment term ended, including an unsolicited photos of his penis. Disturbed, Fiona told her former employer, who took the complaint very seriously and pursued punitive actions against the individual through human resources channels.

Others opt to take things straight to the source. Most social media outlets have attempted to establish anti-harassment policies and reporting tools, and they have made efforts to help users who experience difficulties. When a user hacked into the Snapchat account of one of Talia’s* friends and attempted to force her to send intimate photos, they eventually got in touch with Snapchat, which finally denied the hacker and restored access to her friend.

Such remedies, however, are inherently limited by the platform’s parameters. Adina and Khrystyna have previously tried to report sexist or aggressive Facebook comments, but they were ruled to be in compliance with the platform’s community standards. Ray pointed out that some hook-up and dating apps automatically delete messages after a period of time, making it more difficult to retrieve digital receipts for reporting purposes.

Fortunately, social media outlets are pursuing a number of innovations in this area. In Australia, Facebook piloted a program that enabled users who were worried that their intimate photos would be distributed without their consent to upload the photos via Messenger and turn them into media fingerprints. Using those fingerprints, the program would then block attempts to re-upload them on the platform. 

Ray and Nicole, who were both harassed on dating apps, both mentioned ways in which these platforms can make user experiences safer, such as by integrating ways to report threats or harassment within chat interfaces. Reynolds suggests the development of a collaborative effort between online platforms and tools to develop a sort of “one-stop shop” where individuals can track where their intimate photos were being reposted and put in requests to have them and the search results related to them removed.

Finally, online communities themselves can be positive facilitators of increased user safety. Women and LGBTQ+ persons in particular can use these platforms to band together against potential threats.

Adina pointed to the existence of Toronto-based Facebook groups designed for sharing personal experiences with sexual harassment and flagging potential threats for other women. Years ago, when I accepted a friend request from one of my Tinder matches, a Facebook friend saw the notification on her news feed and alerted me that the man had been sexually aggressive toward other women she knew.

I am no stranger to this kind of solidarity, and I remain hopeful as online support systems continue to expand.

Moving forward, click by click

Legal regulation on unwanted disclosure and online harassment is often associated with a level of caution. Much of the time, police, courts, and legislators are treading uncharted waters, and anticipating potential consequences is key.

But it’s also important to be mindful that the internet is changing rapidly, and society is changing with it. While the law catches up, institutions and communities can continue to pursue proactive measures and fill shortages in service by supporting one another through times of stress.

The TPS is presently taking action to communicate the importance of internet safety to the community through press releases and education campaigns.

Reynolds suggests that the legal community should strive to fill potential gaps in service provision. The availability of traditional channels and services to victims of online harassment is often unclear, she says. “That’s an area where I think the legal community could be doing a lot more in terms of pro bono services or contributing to self-help resources, so that people can understand what options might be available to them.”

Reynolds adds that such programs may even take the form of experiential student-run clinics, similar to the operation of hubs like Downtown Legal Services.

One thing is clear: whatever measures are adopted to fight online harassment should come in direct consultation with those affected. The feelings of shame, powerlessness, and despair complainants experience should urge us to pursue opportunities for redress and prevention in a way that is mindful of their wishes — and places control back into their hands.

Read the companion piece, “Consent in Cyberspace,” in The Varsity Magazine on stands and online at magazine.thevarsity.ca soon.

*Names have been changed at the individual’s request.

Editor’s Note (March 26): This article has been updated to clarify that section 162.1 of the Criminal Code, which deals with publication of intimate images without consent, states that publication or distribution is criminal if the recipient knows the sender does not consent to it, or if they are “reckless as to whether or not” the sender consented.