Difficulties Litigating Crimes in Cyber Spaces (a student perspective)

In the new age of technology and with an ever-growing access to the internet comes a unique challenge for law enforcement and for the legal systems in the world. While each country implements their own laws and try to catch up to the new technology, the citizens of those countries are now able to easily interact with citizens in other countries and break the laws of those countries in virtual spaces.

On October 26th, WISE Manitoba hosted the annual Breakfast and the keynote speaker was Prof. Joanne St. Lewis. She spoke of her own interaction with the legal system attempting to operate in the virtual space and its failure to stem the flow of misinformation. Prof. Joanne St. Lewis was a target of online hate and successfully sued a former professor, Denis Rancourt, for defamatory statements he published on a two on-line blog posts about her.

The lawsuit started in October 2011 in the Ontario Superior Court and litigation wast no finished until it reached the Supreme Court of Canada in September 2015. The result was $100,000 in general damages for defamation and $250,000 aggravated damages for defamation, Rancourt was restrained from publishing defamatory statements and any defamatory statements about St. Lewis was to be permanently removed. The last order, to permanently remove defamatory statements about St. Lewis, became the most difficult to implement.1

At the end of St. Lewis’s speech, she explained that after approaching the corporate entities that continued to spread the defamatory statements via social media, despite the Canadian decision, she was told she must receive a court decision in California where the company was based. She went on to say that the defamatory statements had reached “viral status” and had spread throughout the U.S., the U.K. and even reached Hong Kong. While it appears most of the defamatory statements have now been removed and it is hard to find evidence of the defamation, it illustrates the potential for unwelcome speech to spread seemingly without control. Her struggle is an example of how difficult it is for victims to find protection from the courts in the age of the internet and to have harmful statements removed. 2

While St. Lewis has achieved success in court, there are many others which are unable to even begin to find some recourse because the accused is in a different jurisdiction. Just this week, an appeal case has begun in the Netherlands which will determine whether Aydin Coban “will be extradited to Canada to face five separate charges, including extortion and child pornography, in relation to Amanda’s death in 2012” 3. Amanda Todd, committed suicide in 2012 after severe cyber-bullying and images of her nude circulated on-line. The nature of social media and sharing makes it hard to escape its harmful effects. While the Dutch Court has “sentenced Coban to nearly 11 years…for online fraud and blackmail against dozens of women” and “the Dutch Supreme Court approved his extradition to Canada”, he has still not stood trial in Canada. 4 While Coban will likely stand trial, the ability to extradite hinges entirely on the willingness of the country in which the accused lives. Furthermore, if the country does not have the law as part of their criminal code or has stricter thresholds for convictions, it will be harder to litigate. No country is required to extradite and the potential for stiffer penalties may even factor into a rejection to extradite, as was seen in the most recent high court ruling in the U.K. which blocked the extradition of Lauri Love, who was accused of hacking into U.S.A. government websites 5.

Revenge porn, which is an increasingly common issue in online harassment cases, are resulting in new legislation for many countries. While the first dedicated site for posting revenge porn began in 2010 <6>, publication of an intimate image without consent wasn’t added to the Canadian Criminal Code until 2014. 7 According to The Centre for Internet & Society, there are still significant areas of the world were there is no applicable law 8. In another recent case, a woman’s ex-husband allegedly installed cameras to capture her having sex with another man. Those images were sent to relatives in Pakistan, who then attempted to allegedly extort the woman’s family by threatening to release the images to social media. This was supposedly done in the hopes of having the charges dropped against the ex-husband. Currently, the ex-husband is facing “six charges, including break and enter, voyeurism, and distributing intimate images without consent,” but it is unclear whether the ex-husband’s family will face charges. While the original perpetrator is easier to persecute, each subsequent involved person adds a layer of difficulty and complexity in the case. This is further complicated by lack of laws in some jurisdictions or different thresholds to achieve conviction.

These cases illustrate the difficulties of litigating transgressions in the on-line community. While actions in virtual spaces have very real consequences, the court system struggles with the various third parties who may storing evidence, with the jurisdiction of the crimes and with the subsequent actions of others. Unfortunately, it seems unlikely that the legal system will be able to address these issues until there is significant changes in international law and a multi-national approach taken for crimes committed with the internet.

Endnotes

1 St. Lewis v Rancourt [2015] SCCA No. 407; St. Lewis v. Rancourt, 2015 ONCA 513

2 St. Lewis, Joanne, “Beyond Black History Month: Contributions and Challenges Keynote” (Keynote delivered at Manitoba W.I.S.E. Breakfast, 26 October 2018), [unpublished].

3 Emily Lazatin, “Appeal case to begin in Netherlands for Amanda Todd’s alleged tormentor” (22 October 2018) online: Global News <globalnews.ca/news/4581300/amanda-todd-dutch-accused-criminal-appeal/>

4 Supra

5 Owen Bowcott, “Lauri Love ruling 'sets precedent' for trying hacking suspects in UK” (5 February 2018) online: The Guardian <www.theguardian.com/law/2018/feb/05/hacking-suspect-lauri-love-wins-appeal-against-extradition-to-us>

6 Jack Simpson, “Revenge porn: What is it and how widespread is the problem?” (2 July 2014), online: Independent <www.independent.co.uk/news/uk/home-news/what-is-revenge-porn-9580251>

7 Criminal Code RSC 1985 c. C-46

8 “Revenge Porn Laws across the World” (25 April 2018), online: The Centre for Internet & Society <cis-india.org/internet-governance/blog/revenge-porn-laws-across-the-world#_Toc511943109>