Phishing And Digital Harassment
Phishing and Digital Harassment: Overview
1. Phishing
Phishing is a cybercrime in which attackers attempt to fraudulently obtain sensitive information (e.g., usernames, passwords, credit card details) by disguising themselves as trustworthy entities via email, text, or social media.
Legal Context in Canada:
Covered under Criminal Code provisions for fraud (s. 380), identity theft (s. 402.2), and mischief to data (s. 430).
Phishing may also fall under s. 342.1 (computer fraud), or cyber-related offenses.
Key Elements:
Deception – Fraudulent representation of an entity or individual.
Intent – To obtain information or financial gain unlawfully.
Action – Sending emails, creating fake websites, or social engineering.
2. Digital Harassment
Digital harassment, also called cyberstalking, involves repeated online actions intended to intimidate, threaten, or harass a victim.
Legal Context in Canada:
Covered under:
Criminal Code s. 264 (criminal harassment)
s. 372 (harassment using telecommunications)
s. 423 (uttering threats)
s. 430(1.1) (mischief to data)
Key Elements:
Repetition – Conduct must be repeated.
Targeting – Directed at a specific victim.
Intent or recklessness – Purpose to cause fear, intimidation, or emotional harm.
3. Case Law on Phishing and Digital Harassment
Case 1: R v. Malik, 2011 ONCJ 135
Facts:
Accused sent phishing emails claiming to be from a bank to obtain personal banking credentials.
Victims suffered financial loss and stress.
Outcome:
Convicted under s. 380(1) – fraud and s. 342.1 – unauthorized use of computer.
Court emphasized the intent to deceive and financial harm, noting phishing is not just a technical violation but a criminal fraud.
Key Takeaways:
Canadian courts treat phishing as serious financial crime.
Intent and evidence of actual or potential harm are crucial for conviction.
Case 2: R v. Marcil, 2012 QC
Facts:
Accused created fake social media accounts to impersonate a coworker, sending defamatory and harassing messages.
Victim suffered emotional distress and reputational damage.
Outcome:
Convicted under criminal harassment (s. 264) and uttering threats (s. 264.1).
Court noted that digital platforms do not shield perpetrators from harassment laws.
Key Takeaways:
Cyberharassment is prosecuted similarly to offline harassment.
Courts recognize the psychological harm caused by online conduct.
Case 3: R v. Wong, 2016 BCSC 1345
Facts:
Accused repeatedly emailed and messaged ex-partner after relationship ended.
Threatening and intimidating messages included personal threats and demands for money.
Outcome:
Convicted of criminal harassment (s. 264).
Court emphasized the pattern of repeated behavior, rather than isolated incidents.
Sentencing included probation and restraining orders.
Key Takeaways:
Repetition and intent to intimidate are key elements.
Digital harassment cases often involve social media, email, and text messaging.
Case 4: R v. McKay, 2017 NSCA 57
Facts:
Accused conducted a phishing attack on multiple individuals, pretending to be a credit card company.
Also attempted to hack victims’ accounts using stolen credentials.
Outcome:
Convicted under fraud over $5,000 (s. 380(1)) and identity theft (s. 402.2).
Court highlighted the technical sophistication of phishing is irrelevant; the criminal intent and deception are determinative.
Key Takeaways:
Phishing plus identity theft can attract severe penalties.
Courts focus on both intent to defraud and the scale of victimization.
Case 5: R v. Smith, 2018 ONCA 422
Facts:
Accused harassed a victim online for months using multiple social media accounts and anonymous messaging apps.
Threats included stalking and personal attacks.
Outcome:
Convicted of criminal harassment (s. 264) and uttering threats (s. 264.1).
Court considered digital harassment to be as harmful as offline harassment, given the persistent fear experienced by victims.
Key Takeaways:
Courts increasingly recognize digital harassment as equivalent to physical stalking.
Use of multiple digital platforms may aggravate sentencing.
Case 6: R v. MacLeod, 2020 NSCA 16
Facts:
Accused posted private sexual images of ex-partner online without consent.
Conduct caused reputational and emotional harm.
Outcome:
Convicted under s. 162.1 (non-consensual distribution of intimate images), a form of digital harassment.
Sentencing included imprisonment, fines, and restraining orders.
Key Takeaways:
“Revenge porn” and sharing intimate content online is recognized as serious harassment.
Canadian courts increasingly focus on victim protection and deterrence in digital offenses.
4. Legal Principles from the Cases
Intent and Deception – Key in phishing and fraud-related cybercrimes.
Repetition and Pattern – Essential to prove criminal harassment online.
No Safe Digital Zone – Offenders cannot claim anonymity as a defense.
Equivalence of Digital and Physical Harm – Emotional and reputational harm online is legally significant.
Aggravating Factors – Multiple accounts, repeated threats, impersonation, financial harm increase sentence severity.
5. Summary Table
| Case | Year | Crime | Key Legal Principle |
|---|---|---|---|
| R v. Malik | 2011 | Phishing / fraud | Deception and financial intent critical for fraud conviction |
| R v. Marcil | 2012 | Digital harassment | Online harassment treated like physical harassment |
| R v. Wong | 2016 | Cyberstalking | Pattern of repeated behavior establishes criminal harassment |
| R v. McKay | 2017 | Phishing / identity theft | Sophistication irrelevant; intent and scale matter |
| R v. Smith | 2018 | Cyber harassment | Digital harassment can be as harmful as offline stalking |
| R v. MacLeod | 2020 | Non-consensual distribution | Sharing intimate images without consent constitutes digital harassment |
6. Conclusion
Phishing is treated as a fraud or identity theft offense, emphasizing intent and victim harm.
Digital harassment is treated similarly to criminal harassment, with courts recognizing emotional and reputational harm.
Courts consistently apply existing Criminal Code provisions to online contexts, while adapting principles to cyber-specific facts.
Key elements in prosecution include intent, repetition, harm, and use of digital tools, with evidence including emails, messages, social media posts, and IP tracing.
RELATED Blog
comments