
This article is Part 2 of our series on doxxing. In Part 1, “Protecting Yourself Online: 9 Tactics to Prevent Doxxing While Fighting Antisemitism,” we explored practical strategies to safeguard your privacy and security. Building on those foundations, this article examines when doxxing and related activities can rise to the level of criminal harassment or constitute other offences under Canadian law.
Caution: This article contains offensive language.
Introduction
In the aftermath of the October 7, 2023 attacks by Hamas and other terrorist entities on Israel, the meteoric rise in antisemitism in the diaspora has been unprecedented. This is particularly true in Canada, where antisemitic hate crimes and hate incidents have eclipsed every other form of hate.
Over the last fifteen months, community members and law enforcement have increasingly been alerted to a pernicious form of antisemitic hate: online “doxxing”. Doxxing has traditionally been defined as the act of publicly revealing private or personal information about targeted individuals on the internet (such as home addresses, phone numbers, photographs), without their consent, often with malicious intent. What is new is the prevalence of this activity, and the specific targeting of both individuals and groups for their expressed support for Zionism, or presumed support as Jews.
We have heard from professionals (such as Jewish physicians and lawyers) and many others who have been targeted for expressing views as basic (and constitutionally protected) as the right of Israel to exist as a Jewish state. Malevolent online activity extends beyond the publication of private or personal information to maligning and demonizing targeted individuals and groups both through circulated falsehoods and by inciting others to misuse the published information.
Social media platforms, including Instagram, Facebook, LinkedIn, and X have provided a whole new arena in which individuals can be victimized – as stated, not only through public disclosure of sensitive information, but through character assassination and threatening behaviour. Although some of the tormentors identify themselves, many attempt to hide behind a cloak of anonymity by using “handles” or fake names designed to disguise their identities. Indeed, social media can facilitate harassment because it can be achieved without facing the victim in person, and because it can be easily repeated over and over again.
We are at the early stages of recognition by the judicial system of the criminal dimensions of doxxing and related activities. However, in my view, this misconduct may well amount to criminal harassment and violations of other existing criminal offences. What follows is a detailed description of existing criminal offences that may apply to online malevolent conduct.
Criminal Harassment
Criminal harassment prohibits certain conduct that causes a complainant to fear for their safety or the safety of anyone known to them.
Subsection 264(1) of the Criminal Code states: “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 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”.
Subsection (2) states:
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) 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
(d) engaging in threatening conduct directed at the other person or any member of their family.
The bolded paragraphs are most relevant to doxxing and related online misconduct and are elaborated upon below.
The essential elements of the offence of criminal harassment are:
1. The perpetrator engaged in at least one of the behaviours set out in paragraphs 264(2)(a)-(d);
2. The targeted person was harassed;
3. The accused knew that the targeted person was harassed or was reckless or wilfully blind as to whether the targeted person was harassed;ⁱ
4. The conduct caused the targeted person to fear for their safety or the safety of anyone known to them; and,
5. The targeted person’s fear was, in all of the circumstances, reasonable.
Doxxing may constitute criminal harassment under paragraphs 264(2)(b) or (d) depending upon the specific circumstances. Regardless of how a targeted person might be harassed, it is not sufficient to be "vexed, disquieted or annoyed". The targeted person must be either "tormented, troubled, worried continually or chronically plagued, bedeviled and badgered".
In other words, merely offensive conduct that angers or annoys will not be sufficient to meet the criminal threshold.ⁱⁱ
In R. v. Fulton, the Court addressed the question (which was the subject of limited jurisprudence) of whether posts on a social media account can be said to involve communication with the targeted person. The Court concluded that the posts must be clearly directed at the targeted person and intended for them to receive. Although the perpetrator did not specifically name the targeted person in the posts, this did not immunize him from a finding that they were directed at her, involving indirect communication with her pursuant to paragraph 264(2)(b).ⁱⁱⁱ
In a 2016 decision of the Ontario Court of Justice, the trial judge provided a useful analysis of how a perpetrator may communicate directly or indirectly online with a targeted person:
Every time that Mr. Elliott started a tweet with [V’s] handle or mentioned Ms. [V], he communicated with her directly. When he tweeted mentioning her handle, he knew that it might be brought to her attention. Even after she blocked him, his perception that she was part of a group proves he knew tweets with her handle would reach her. I therefore find the repeated communication that the section requires.ⁱᵛ
Turning to s. 264(2)(d), the “threatening conduct” must amount to a “tool of intimidation which is designed to instill a sense of fear in the recipient”. The conduct in question must be viewed objectively and the question to be asked is, “would the accused’s threatening conduct cause a reasonable person in the complainant’s situation to fear for her safety?”
This objective assessment must consider the circumstances in which the conduct took place and the actual impact of that conduct on the targeted person.ᵛ
In R. v. Hasan, the harassing conduct related to a series of posts made by Mr. Hasan on his public Facebook account about a police officer and a lawyer who were involved with him in a previous proceeding. The posts were clearly threatening in nature. He frequently referred to the police officer as the “Jewish detective” and expressed strongly held antisemitic views about Zionism and the State of Israel.
He also accused the victims of being “sadistic psychopaths” and directed several posts to the lawyer, such as “To [N.C.] (…), how do you like my tantrums, bitch? (…) fuck you bitch… no no let me say it one more time fuck you bitch”. The Court held that these latter posts “could reasonably be interpreted as misogynistic and hostile” while also noting that, “as Goldstein J. observed in R. v. Roy, 2019 ONSC 903, being annoying, persistent or even racist will not necessarily, without more, render an individual guilty of criminal harassment”.
Again significantly, the Court rejected the defence argument that the posts were not directed at the complainants.
The Court held:
In my view it can no longer be said with confidence that not knowing whether social media postings containing threats or other harassing content will come to the attention of a complainant will defeat a criminal harassment charge. A posting containing threats against identified or identifiable individuals made with the intention to make a public pronouncement may well, depending on the circumstances, be considered harassment of those individuals if it is foreseeable that they will become aware of the postings.ᵛⁱ
While Courts have interpreted s. 264(2)(b) to require repeated communication directed at a targeted person, indirect communication will likely be found to have taken place by naming the targeted person or referring to their handle on a social media post. Creating a website dedicated to instituting a campaign of harassment against an individual or a class of individuals may well fall within the ambit of either section 264(2)(b) or (d) depending upon the specific facts. Whether the conduct is “threatening” pursuant to subsection 264(2)(d), that is, a “tool of intimidation which is designed to instill a sense of fear in the recipient” will be a factual determination for the Court in each case.
Regardless of whether the online misconduct involves repeated communication or threatening, the prosecution must establish that the conduct caused the targeted person to fear for their safety or the safety of anyone known to them; and that the fear was, in all the circumstances, reasonable. This component of criminal harassment may be the most contentious in individual cases – after all, one can be angered, upset, irritated and frustrated by conduct that nonetheless does not instill a reasonable fear for the targeted victim’s safety.
While each case turns on its own facts, in my view, it is not an irrational leap to fear for one’s personal safety when, for example, a targeted person’s home address and/or photograph have been exposed online, presumably to incite others to attend the target’s home for nefarious purposes. Repeated communications may support a finding that the perpetrator is obsessed with the target, facilitating proof of the elements of the offence. Threatening language more easily permits an inference that reasonably held safety concerns exist. The evaluation of criminal harassment allegations must always be viewed in the context of the full range of activities involving the target with whom the perpetrator is engaged.
It is also highly relevant to the evaluation that the perpetrator has been made aware, through police or others, that their conduct is regarded as harassment, but has persisted, nonetheless. I expect the authorities to also consider the larger context of hate activities directed against the targeted person’s community that are known to the targeted person.
These may reinforce the reasonableness of the targeted person’s safety concerns and their validity. The perpetrator’s online endorsement of violence, more generally, may also be relevant to concerns about safety.
Other Offences
Harassing Communications (s. 372(3))
The essential elements of this offence are:
1. The perpetrator repeatedly communicated with the targeted person, without lawful excuse, or caused others to make such communications to the targeted person by a means of telecommunication.
2. The perpetrator intended to harass the targeted person.
Telecommunications means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system.ᵛⁱⁱ This would include telephone calls, emails, text messages, online posts, etc.
Unlike criminal harassment involving repeated communications, s. 372(3) does not require proof that the perpetrator’s repeated communications caused the targeted person to reasonably fear for their safety or the safety of anyone known to them.
Defamatory Libel
Pursuant to subsections 298 to 301, the essential elements of this offence are:
1. The perpetrator published something, without lawful justification or excuse, likely to injure the targeted person’s reputation by exposing them to hatred, contempt or ridicule or designed to gravely insult the victim.
2. The perpetrator knew that what they were publishing was false and intended to defame the targeted person.
This offence may be applicable in circumstances where the online misconduct extends not only to the disclosure of personal or private information, but to the deliberate publication of false information about the targeted person so as to injure their reputation by exposing them to hatred, contempt, ridicule or insult.
As illustrated above, doxxing and other forms of online harassment will often involve a compilation of conduct targeting a community member or identifiable group. These activities may give rise to consideration of additional criminal offences, such as:
Uttering threats - s. 264.1
Hate speech - s. 319
Intimidation - s. 423
Extortion - s. 346
Identity fraud - s. 403
Mischief in relation to computer data – s. 430(1.1)
Next Steps
If you believe you are being doxxed or have been doxxed, or otherwise the victim of online criminal misconduct, it is crucial to take immediate steps to protect yourself. Ensure that you document any relevant conduct and preserve relevant evidence.
This includes screenshots of any posts or messages. Report the behavior to the platform where it occurred. Consider contacting local law enforcement and seeking legal representation to assess whether the situation warrants legal or protective action. Facilitate a thorough investigation through creating an organized, chronological outline of the perpetrator’s ongoing activities directed towards you, supported by their reproduction in sequence.
Additionally, reach out to trusted colleagues or advocacy organizations for support.
At ALCCA, we are committed to expanding our resources and working with our community partners to better support individuals who have experienced doxxing. Stay connected with us for future updates and tools to help navigate these challenging situations. Remember, you do not have to face this alone; help is available.
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Endnotes
ᵢ) At the risk of oversimplification, recklessness and wilful blindness represent proxies for subjective knowledge. The reckless perpetrator is aware of the risk that their behaviour is harassing but proceeds despite the risk. The wilfully blind perpetrator suspects that their behaviour is harassing but deliberately refrains from confirming those suspicions.
ᵥᵢᵢ) Interpretation Act, R.S.C., 1985, c. I-21, s. 35(1)
About the Author
Rochelle Direnfeld was called to the Ontario bar in 1990 and has served in the Ontario Public Service for over 32 years as an assistant crown attorney, deputy crown attorney, crown counsel, and finally as a deputy director for Toronto Crown Attorneys in the Criminal Law Division of the Ministry of the Attorney General. Rochelle retired from public service at the end of 2023. During her career, Rochelle prosecuted a wide variety of Criminal Code cases in the Ontario Court of Justice, Superior Court of Justice, and the Ontario Court of Appeal.
Rochelle focused a large part of her career on youth criminal justice, developing policy as well as training and lecturing crowns, the defence bar, the judiciary, and the police. Since 2019, Rochelle has been committed to battling hate motivated offences and has sat on the Attorney General’s Hate Crime Working Group, providing legal advice to crown counsel and police on hate crimes. In the aftermath of October 7, Rochelle returned to work with the Hate Crime Working Group at Crown Law Office - Criminal until November 2024. Rochelle also serves as vice-chair of the Board of Directors of BOOST Child and Youth Advocacy Centre, a wrap-around agency serving children and youth who have been victims of abuse, as well as their families.