Canada's New Cyberbullying Law Is Targeting Teen Sexting Gone Awry

When a 16-year-old girl from Saanich, BC looked at her boyfriend's cell phone in 2013 and saw that his ex-girlfriend was sexting naked photos of herself she got angry and jealous. Then she forwarded the images to a friend through text and Facebook.

It was a decision that would come with devastating consequences, turning a bright, ambitious teen into an outcast known around town as a pedophile.

After she was caught with the images, police seized them and charged her with possessing and distributing child pornography because the ex-girlfriend in the photos was also a minor at the time.

In January 2014, the girl (whose name cannot be released because she was under 18 years old when she committed the offense) became the first minor in Canada to be convicted of child pornography. As she awaited sentencing, the girl had to abide by conditions that included staying off the internet unless supervised by a designated adult.

This week, more than two years after she was first charged, she received her sentence — a six-month conditional discharge. At the hearing on Monday, the judge said the teen will avoid jail time if she continues reporting to her probation officer, stays off the internet unless supervised, and writes a letter of apology to the victim.

While the girl, now 18, and her mother are relieved that she doesn't have to go to jail, they're still reeling over how this whole ordeal has turned their lives upside down. "She was a very active, outgoing, and strong child," her mother, Rebecca, told VICE News after the sentencing. The girl went from being a star student with many friends and a passion for sports and photography to almost failing her classes and being bullied at school.

Even though her identity in the criminal proceedings was supposed to be concealed, as she was a minor, someone leaked details of the case on social media anyway. Students at her high school began taunting her, her mother says, calling her a pornographer and a pedophile. After she couldn't take it anymore, she transferred schools and tried to keep a low profile.

Her story is among a growing number of cases worldwide that underscore the tension between laws aimed at preventing child exploitation and the new realities of teen sexual expression.

The provision in Canada's new anti-cyberbullying law (Bill C-13) that makes it illegal to share "intimate images" of someone without their consent came into effect last month, long after the BC teen was convicted. It followed the high-profile case of Nova Scotia teenager Rehtaeh Parsons, who died after attempting to commit suicide in 2013 after sexually explicit images of her circulated online among her peers. At the time, law enforcement in Canada was scrambling to figure out how best to respond to the advent of sexting.

Since around 2009, dozens of Canadian teens — some as young as 13 — have faced child pornography charges for receiving and sending sexts containing naked photos of themselves or others to their friends. Over the last year in the province of Ontario, five teens caught sexting (three in Norfolk County and three in the Woodstock area) have been charged with possessing and distributing child pornography.

Then in April a group of elementary school children was investigated by police after they allegedly shared naked photos of themselves on their cell phones and Nintendo DS devices. A police spokesperson said no charges were laid in this case because the children involved didn't realize what they were doing.

In the US, countless youth have been charged and convicted of child porn in sexting cases over the last several years, even when they took the photos of themselves.

Australia was one of the first countries where police laid child porn charges against sexting teens — 32 teens there faced child porn charges in 2007. But last August, the state of Victoria tabled a new law that would make it illegal to share a sexually explicit image of someone without their consent — similar to Canada's cyberbullying legislation. But if passed, the Victorian law would also prevent anyone under the age of 18 from being convicted of child pornography in sexting cases.

Related: Canada's new cyberbullying bill will give it unnecessary surveillance superpowers. Read more here.

Mary Anne Franks, a law professor at the University of Miami who specializes in cyberbullying, told VICE News that Canada's new law is superior to most of the cyberbullying and sexting laws that have been passed in around 17 US states, and is preferable to child porn charges. New Jersey, for example, amended its laws so that teens caught sexting will not face child porn charges the first time they offend, while teens in Virginia can be sent to a diversion program on their first offence.

"The [Canadian] provision that deals with non-consensual sharing defines the crime well and makes it clear what is being prohibited," Franks said. The new law states that anyone, including adults, who shares an "intimate image" (defined as a "photographic, film or video recording" in which the person is fully or semi-naked) without the creator's consent can be sentenced to five years in prison.

"When a teen forwards an image of another teen non-consensually, it's wrong to say it's child pornography. That's not what's wrong with it — what's wrong with it is that it's non-consensual behavior," continued Franks. She added that it's difficult to tell at this point if the new law will mean that law enforcement will stop using child porn charges against teens, but it's a step in the right direction.

Franks said, however, that by the time law enforcement gets involved at all, it's a sign that parents and teachers haven't done their jobs to educate youth about healthy relationships. "Training and education needs to start as early as possible, for boys and girls, to emphasize that sexual activity in particular is the kind of thing where you always need unambiguous consent," she says.

The BC teen's mother, Rebecca, says that her daughter will appeal the conviction because she, too, thinks child porn charges were inappropriate in her situation and wants to set a legal precedent.

Rebecca hopes an appeal of her daughter's conviction will result in a decision that makes it clear that other teens in Canada should not face child porn charges in sexting cases. "There's an automatic stigma that comes with being labeled as a child pornographer, on a sexually deviant level," Rebecca says. "This wasn't about sexual gratification. Our child porn laws are designed to protect children against sexual predators and my daughter is not a predator."

Follow Rachel Browne on Twitter: @rp_browne

Photo via Flickr